By Mike Hiestand, Houstory Founder

The following is the second part of a two-part series written by Houstory founder Mike Hiestand. Mike’s background in open records law is extensive: He worked as an attorney for more than two decades, helping journalists with their questions about access to government records and meetings.

In last week’s post, he provided general information regarding vital records research. This week, he’ll touch on the specifics of tracking down this valuable information for family historians and genealogists.

The first thing to know is that there is no national set of rules when it comes to vital records.

Providing specific information about access to vital records that applies across the board — in every state or territory — is simply not possible. Nevertheless, here are a few points to keep in mind:

Who to Ask

Requests for most public records can generally be made to the place where you think the records are kept. For example, if you’d like to see a copy of the health inspection of a particular restaurant in your town or an environmental impact study affecting your neighborhood, you should request those records from the County Health Department in the county where the restaurant is located or the state or federal agency that conducted the environmental tests. The same is often true for vital records — but not always. If you’re looking for a marriage certificate and you live near where you know the marriage was performed, it’s probably worth a phone call to that county clerk’s office. While they may not keep the record you’re looking for they should be able to direct you to the appropriate office (for example, a county court clerk.) However, a number of states have created Vital Records Offices or Agencies that are now responsible for collecting and managing access to vital records — either separately or in addition to the local record-keeper. A good resource for determining where vital records in a particular state are kept is maintained by Center for Disease Control and Prevention. Alternatively, you can just enter “Vital Records” and your state name (or you can even try your county name) into an Internet search engine to track down more information.

How to Ask

In many states, public records must be made available when they are asked for, either by mail, by phone or in person. Verbal requests in some of these states are valid. Other states require that you submit a written request. (You can find a nice, free automated form for requesting many public records here. (Full disclosure: I can say it’s nice because I helped create it years ago.)

Once again, however, obtaining vital records often requires you to play by different rules, which frequently includes requiring that you complete a specific agency form or that you provide specific identification that, as discussed above, proves you are someone with a direct and tangible interest.

While an increasing number of government agencies now offer online ordering services for vital records, in many cases states have made the private company VitalChek the authorized agency to provide such service. If you go the online route, just be aware that VitalCheck charges a service fee for the convenience, which is in addition to the regular fee charged by the state or local record-keeper.

Other companies are also stepping into the vital records business, so you may want to do a bit of research if you expect to need such information on an ongoing basis.

When to Ask

This is particularly frustrating as states truly are all over the map in establishing waiting periods — or not — when it comes to accessing vital records. Most states have waiting periods specified in their statutes for how long after an event you have to wait to request access to birth certificates and death certificates — but not all. A fairly common waiting period for birth certificates (unless the record is your own or you are the minor subject’s parent/guardian) is 100 years after the birth. Twenty-five years after death is a common waiting period for death certificates. Waiting periods for adoption records are even more varied, and frequently combined with other various exceptions and requirements. Waiting periods are less common for marriage and divorce records.

Still, trying to provide “standard” general information in this forum is an exercise in futility. In 2009, the Records Preservation and Access Committee of The Federation of Genealogical Societies and The National Genealogical Society compiled a list of states and their respective waiting periods, which may provide some help. Unfortunately, because state laws often include a dazzling array of exceptions and other stipulations, the list might not be the end of your research. A visit to your state’s Vital Records Office is probably the best first step.

How much does it cost?

You should expect to pay a fee to obtain a vital record. Open record statutes will either establish a standard fee schedule or, alternatively, allow an agency to charge a “reasonable fee.” One thing is clear: Providing public access to public documents is not supposed to be a money-making venture for the government. Unfortunately, as state and local governments have seen their budgets shrink, there has been an increasing tendency to raise fees for public records. Still, the law demands the fees be reasonable — which generally means the agency is entitled to recoup its actual costs for producing the record — and courts have sometimes stepped in to strike down particularly high fees as unreasonable. Vital records generally do have set fees, but those fees have also been rising in some states. The CDC Web site, mentioned above, includes some fee information.

Vital statistics records are part of the bread and butter of genealogists. While the rules can be frustrating, the information is generally available.

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By Mike Hiestand, Houstory Founder

The following is the first part of a two-part series written by Houstory’s Mike Hiestand on access to vital records for genealogists and family historians. Visit here for part two.

Mike’s background in open records law is extensive: He worked as an attorney for more than two decades, helping journalists with their questions about access to government records and meetings. He has spoken all over the country, written a book and produced various other resources to help journalists and others navigate state and federal freedom of information laws that, when used, can be highly effective tools for accessing government records and meetings.

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Oddly, when giving a talk to folks on freedom of information law, some of the most frustrating questions I would receive concerned the particular subcategory of public records of most interest to genealogists: vital statistic records (or vital records). That is, records that document the important milestones that make up a person’s life: their birth, adoption, death, marriage and divorce. A person’s military service records are also sometimes lumped into the category of vital records.

Answering questions about vital records is frustrating because access to such basic public records should be so much simpler than it is. Increasingly, states are stepping in to implement rules they claim are meant to protect against fraud, identity theft or, in recent years, terrorism. The dangers vital records actually pose and the efficacy of the laws intended to curb such nebulous risks are matters of hot debate. The undeniable casualty of lawmakers’ meddling around, however, has been a user-friendly records system. Rarely does the current system lend itself to a quick answer. Unless you’ve memorized the rules of a particular state, you always have to look them up because there is not a lot of rhyme or reason — and certainly not a lot of consistency — that informs those rules.

The first thing to know is that there is no national set of rules. Vital records are local records that are governed by an individual state’s open records law. That means that while another person’s birth certificate might be available to you today in state “A,” that same record could be off limits in state “B.” (The rules for getting a copy of your own vital records are less stringent.)

According to a 2009 survey by the Records Preservation and Access Committee of The Federation of Genealogical Societies and The National Genealogical Society, “Birth record release dates range from 72 years [after birth] in Delaware (the same restricted period as the U.S. Census) to 125 years in Alaska. Death record release dates range from 25 years [after death] in Alabama and Texas to 50 years in a majority of states.”

As for adoption records, whose rules can get particularly gnarly, the same Committee found “nine percent of the states…allow access to this information for adoptees between eighteen and twenty-one years of age. Four states have open access with either higher year age restrictions or other regulations.”

Many state laws include rules about who may obtain a copy of a vital record. State laws often restrict access to those with a “direct and tangible interest.” (Or language similar in effect.) Way too often, the statute leaves that term undefined, which means it’s up to the government record-keeper (or eventually a judge if a dispute arises) to interpret and determine who has a direct and tangible interest.

Fortunately, lawmakers in other states have at least taken a stab at clarifying what the terms means. Hawaii, for instance, defines someone with a direct and tangible interest as including the following:

1. Registrant
2. Spouse of the registrant
3. Parent of the registrant
4. Descendant of the registrant
5. Person having a common ancestor with the registrant
6. Legal guardian of the registrant
7. Person or agency acting on behalf of the registrant
8. Personal representative of the registrant’s estate
9. Person whose right to inspect is established by an order of a court of competent jurisdiction
10. Adoptive parents who have filed a petition for adoption and who need to determine the death of one or more of the prospective adopted child’s natural or legal parents
11. Person who needs to determine the marital status of a former spouse in order to determine the payment of alimony

Points (4) and (5) would cover the work of most individual genealogists researching their own family, but could leave genealogists and historians without a direct family tie scrambling.

Next week, Mike will discuss the specifics of tracking down vital records information for family historians and genealogists — including who, how and when to ask for the information.

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