21 September 2017

Let's make Our Response to the NYC Vital Records Access Proposal Go Viral!

The New York City Department of Health and Mental Hygiene has posted notice of a proposal to change its rule for access to the vital records under its care: New York City birth and death records. I have to admit my favorite part of the posting is their insistence (it must be insistence since it is repeated several times on the page and is codified in the URL) that they are considering viral statistics provisions. 

That got me thinking this is our chance to make the genealogy community's response go viral. Let's do it!

Here's the scoop:

New York City is considering changing its rules for making birth and death records publicly available via the New York City Department of Health and Mental Hygiene. They are taking comments through 24 October 2017. Dick Eastman noted this on his blog at https://blog.eogn.com/2017/09/19/new-york-city-department-of-health-proposes-adoption-of-125-years-for-birth-records-50-years-for-death-records-embargoes/.

Laws of the State of New York restrict public access to birth records less than 100 years old and death records less than 50 years old. Currently, the New York City Municipal Archives has birth records available for viewing and purchase through 1909, death records through 1948 (they have marriage records, too, but later ones are maintained by the City Clerk and are not under consideration in this new rule). By the standards set by New York State, the Municipal Archives ought to also hold birth records through 1916 and death records through 1966. But, the State grants New York City discretion in setting its own rules for vital records access.

Current NYC rule 207 (which may be seen here), is not very specific. Yet, the keeper of later records, the New York City Department of Health and Mental Hygiene (DOH), has set much more stringent requirements than the State.

Regardless of the time that has passed since a death event, death certificates in possession of the DOH (even if 100 years since birth or 50 years since death) are only accessible to spouses, domestic partners, parents, children, grandparents, grandchildren of the deceased or those with legal rights to the records.

In a recent response to a record request, I received a letter outlining additional DOH requirements.
Required information for Death Certificates:
  • Decedents first and last name
  • Date of Death - or provide 3-year range
  • Mother's first and maiden name
  • Father's first and last name
  • Social Security number
If the information is not available, please provide at last 3 of the items below AND include the entitled party's email address so that we may contact him or her for additional information:
  • Decedent's date of birth
  • Borough of death
  • Last known address
  • Place of birth: home birth address, hospital, etc.
  • Birthplace: (City, State, Country)
  • name of informant
  • Name of cemetery or crematory
  • Funeral director/address of funeral home
  • Date of burial or creation

Quite obviously, genealogists have not been a consideration here. Many of the information items required are the items we are trying to determine through acquisition of these records. This has been a sore point with those researching in New York City for some time. That, plus the fact that unless one is a direct descendant, forget about acquiring a death record from about 1950 to the present. This is a bit arbitrary considering that death records from before then are readily and easily available to all via the Municipal Archives. And, of course, if the person died anytime between about 1962 and 2014 we should be able to find out their Social Security number and death date via the Social Security Death Index (freely available on many websites).

Now, DOH is proposing a new rule 207 to set a regular schedule for transfer of records to the Municipal Archives. Hallelujah! 

Oh wait ... one issue: this new schedule would come with increased restrictions on records access.
  • a birth record would become a public record on January 31st of the year following 125 years after the date of birth [a 25% increase], and
  • a death record would become a public record on January 31st of the year following 75 years after the date of death [a 50% increase].
They also mention that they are considering death record access of 50 years rather than 75 for genealogical purposes. It is a little difficult to see how that fits into all of this. The mention of this consideration in the proposed rule seems like something thrown in as an afterthought. 

One has to assume that access for "genealogical purposes" would be maintained with the same restrictions we now see, despite the fact that those restrictions are not codified in existing rule 207 nor in proposed rule 207. That is, no access to records unless one is a spouse, domestic partner, parent, child, grandparent, grandchild of the deceased or has legal rights to the record.

The City is taking comments through 24 October 2017 when there will be a public hearing. I suggest that all genealogists with interest in more recent NYC vital records submit comments. Those in the NYC area should attend their public hearing - in force!

I am working on the following draft comment for submission. Over the next day or so I will, as any good genealogist would, edit the text and add some citations for my contentions (23 Oct 2017, my submitted comment is here). I urge you to write your own comments and send them in to NYC DOH. Let them know we are listening and we care - a great deal!

I urge New York City to make birth and death records public and transfer them, on a fixed schedule, from The Department of Health and Mental Hygiene to DORIS (i.e., the Municipal Archives). I also urge New York City not to adopt further restrictions on when vital records will become publicly available. With regard to potential identity theft, this proposed rule is applying a sledge hammer to facilitate installation of a thumb tack. The tool will do the job, but there will be extraordinary collateral damage with little gain.

For death records, I urge you to adopt New York State’s 50-year rule without restriction or, even better, adopt an open records option (similar to some other states).
The stated privacy issue is moot. The federal Privacy Act does not apply to those who have died. Probate law requires public access to probate records so that potential heirs may be fully informed. As a result, for many, basic death information is known.
The vast majority of stolen identities are from living people made vulnerable via their use of social media, use of credit cards or response to email spam. Identity theft using names of the dead is an extraordinarily small percentage of identity theft cases.
I believe open records, rather than restricted ones, are more likely to be helpful with regard to the dead. For example, if companies had accessible death databases and records, they would be less likely to accept credit applications using names of dead people. That was the original concept behind the Death Master Index (Social Security Death Index). A few years ago,changes to availability of the updated index were made supposedly for protection of PII, but even then, the restriction is only for a few years after death - not 125 years after birth!

While the proposed rule's story of protecting a living mother’s dead child’s record, may tug at the heart strings, I urge you to also think about an equally compelling and much more common situation: there are many more people who die without issue. Under current NYC restrictions imposed by the Department of Health and Mental Hygiene, no relatives but parents, grandparents, direct descendants or siblings may acquire death records even if those records are more than 50 years old. It is impossible for anyone, including caring relatives, to acquire the records necessary to allow adequate remembrance of their dearly loved aunts, uncles and cousins. This is not only ridiculous, but also unconscionable. Certainly, there are many more records for people in this category than for the child and mother in the proposal's hypothetical example.

With regard to the proposal to increase birth record restrictions, it is important to note that nearly all of the Personally Identifiable Information (PII) on birth records is readily available for everyone to find via the Internet. Birth records, themselves, are not the reason this information is available online. This information is available because it has been required by many government and private organizations for credit and land transactions and is available publicly. Or, the information may have been stolen during any one of many recent company and government agency data breaches. The PII DOH is proposing to protect via vital record access restrictions is already publicly available. Restricting birth records up to 100 years in New York City will not change this situation in any way.

It is also important to note that, by the statistics provided in the proposed rule regarding birth records, those over 100 years old make up but 0.4 % of the New York City population. This  NYC-led sledge hammer-like approach to a miniscule issue is stunning. It, like the proposal for death records, indicates a callous disregard for public access and government accountability.
Perhaps a better solution that would address both DOH and open records concerns would be to make death records open to the public (or only closed for 5 years) and birth records for those under 100 publicly available without restriction to those who can show with a death record, an obituary, a gravestone photo or a Social Security Death Index record that the subject of the birth record is deceased.
Many jurisdictions throughout the United States have open records laws, much more liberal that New York City. New York City has been more restrictive than New York State for some time with little or no explanation to the public for this difference and with no discernible advantage for PII protection. Unlike New York City, New York State and many other jurisdictions do not seem to view further restriction on public access in the public interest.

I would hope that actions with regard to further public record restrictions would be weighed seriously and considered with regard to whether the solutions proposed will have any impact on the problems identified. I suggest the solutions are draconian and unwarranted and, most importantly, will have no effect on the identified issue of privacy.

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