Navigating the Law: Access to Vital Records for Genealogy, Family History Research

gavelBy 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.

3 comments on “Navigating the Law: Access to Vital Records for Genealogy, Family History Research

  1. Sharon Sergeant says:

    Collateral family connections, not lineal ancestors, are also important, creating a problem for verification even for lineal ancestors through multiple records sources.

    Also in the case of lineal ancestors, the Catch-22 is when you need to see the record to determine IF that person is a lineal ancestor.

    Nearly a decade ago, the U.S. Surgeon General began to emphasize compiling family history research to the general public as an aid to their own medical prognosis and treatment. Yet, Health Information Privacy (as legislated Federally in HIPAA) has been wrongly interpreted to mean privacy after death by subsequent state legislation or procedures to remove cause of death from vital records.

    More recently, the Social Security Administration (SSA) has redacted information from Social Security application requests under the Freedom of Information Act (FOIA) unless the persons involved are 120 years of age or their death can be proven. Another conundrum when you are trying to figure out if you have the right lineal connections.

    In 2011, the SSA also removed records and information from their Death Master File (DMF) because they believed they may be violating an individual state’s death records law.

    Several U.S. Representatives have filed bills to remove the DMF from public access on the premise that the availability of the Social Security numbers of the dead causes Identity Theft – when in fact the DMF came into being more than 30 years ago to prevent fraud. The I.R.S. has been slow to actually use the DMF as a fraud prevention tool, causing hundreds of thousands of families filing a tax return for the deceased to slog through months or years of proving that the person in question was on their legitimate return.

    The I.R.S. has further been negligent in identifying fraudulent tax returns for the living, particularly children (who often do not file for 16-20 years after birth) and really any other living person since the Social Security number generation was a predictable formula – and you could literally pick a number out of the air to use on a fraudulent tax return.

    Schools of thought that tie Social Security numbers with identity in general and birth certificates as a breeder document for identity are actually quite ignorant of what fraudsters actually do.

    Closed records states create a wonderful environment for fraudsters. It is not only harder to catch them, but often results in the most egregious cases of fraud.

    FRAMING A DISCUSSION ON VITAL RECORDS ACCESS
    http://www.massgencouncil.org/index.php?option=com_content&view=article&id=56:frameadiscussion&catid=35:billprocess&Itemid=71

    Thank you Mike for this topic. Your vast experience with records access issues is appreciated.

    Sharon Sergeant
    Civil Records Committee, Massachusetts Genealogical Council
    Massgencouncil.org

  2. Yes! Yes! Yes! Sister, you are preaching to the choir on every one of your excellent points!! 🙂

    Thanks Sharon.

  3. […] last week’s post, he provided general information regarding vital records research. This week, he’ll touch on […]

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