23 October 2017

Comment Submitted to NYC Dept of Health and Mental Hygeine!

Don't let the opportunity to comment pass you by!

About a month ago I posted my draft. Here's what I just sent to NYC DOH.

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 to not 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.

For death records, I urge you to adopt a 10-year rule without restriction or, even better, adopt an open records option (similar to some other states). The federal Privacy Act does not apply to dead people. Probate law requires public access to probate records so that potential heirs may be fully informed. As a result, for many people, their 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.

While the example provided in the NYC proposed rule of protecting a living mother’s dead child’s record (remember we are talking here about a mother who would likely be several years past 90 years old), may tug at the heart strings, I urge you to also think about equally compelling and much more common situations. 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 death records for people in this category than for the child and mother in the first hypothetical instance.

The hypothetical situation presented, highlights an important issue regarding background research for any proposed restrictions of records access in New York City. While there are few states that are currently more restrictive than New York City regarding vital records, there are some states that are less restrictive. Research on their successes and failures in this regard is relevant. Ohio and North Carolina provide non-certified copies of birth and death records to all. New York City is currently one of the most restrictive states. Yet, all three states are about equal, statistically in identity theft. In “Facts + Statistics: Identity Theft and Cybercrime,” a 2017 article online at the Insurance Information Institute (https://www.iii.org/fact-statistic/facts-statistics-identity-theft-and-cybercrime ), they note that New York ranks 22nd (102.3 complaints/100,000 people), North Carolina 26th (96.1/100,000) and Ohio 27th (94.8/100,000) among states.  Clearly, open records are not correlated with increased identity theft.

With regard to the proposal to increase birth record restrictions, it is important to note that nearly all of the 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 beyond 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 same NYC-led sledge hammer-like approach to a miniscule issue is stunning. It, like the proposal for death records, belies a callous disregard for public access and government accountability.

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 discernable 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.

In closing, I would like to suggest an option that seems not to have been considered: making non-certified copies of birth and death records accessible to all with few years of restriction (perhaps 75 for birth and 10 for death), but making certified copies accessible only to direct descendants and those with tangible interest. Since most of the information on birth and death records are already available via the Internet, this would ensure that legally certified birth records would be used and reserved for the most important purposes.

Emily Garber
23 October 2017

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