Contact:
Charles N. Davis, SPJ Freedom of Information Committee, (573) 882-5736 or daviscn@missouri.edu

Pending federal regulations have state vital records officials considering rollbacks in access to birth and death records. If your state officials aren’t thinking about this issue yet, they soon will be.

THE ISSUE: The implementation of a provision in the Intelligence Reform and Terrorism Act of 2004 that concerns public access to birth and death certificates. The provision, Public Law 108-458, requires minimum standards for the use of birth certificates by Federal agencies for official purposes.

In response to the 9/11 Commission’s recommendation that “the federal government should set standards for the issuance of birth certificates, and sources of identification such as drivers licenses,” Congress passed the Intelligence Reform and Terrorism Protection Act. Prior to the passage of the Act, there were no national standards for the issuance of these vital records; rather issuance was determined on a state-by-state basis.

Section 7211 of the Act—the minimum standards for birth certificates section—requires that “Not later than one year after the date of the enactment of this act, the Secretary of Health and Human Services shall by regulation establish minimum standards for birth certificates for use by Federal Agencies.”

Among other things, the Act requires that the Secretary of Health and Human Services “establish requirements for proof and verification of identity as a condition of issuance of a birth certificate, with additional security measures for the issuance of a birth certificate for a person who is not the applicant.” However, it is up to the state to determine how non-official copies of birth certificates are issued.

Concern has been expressed that the provision will make it harder for reporters, activists and genealogical researchers to access vital records. Another problem seems to be the confusion among some federal, state, and local officials about what Public Law 108-458 actually prescribes.

One of the problems is that we don’t know what it prescribes and won’t know any sooner than June 2006. On December 21, 2005, Secretary Leavitt of the Department of Health and Human Services re-delegated authority to the Director of the Center for Disease Control and Prevention (CDC). As a result, issuance of the regulations has been postponed.

However, it appears as if some states are taking steps in anticipation of the regulations.

South Dakota has sealed off public access to certified birth and death certificates, marriage licenses and divorce records. To obtain a copy of these records, the applicant must have a “direct and tangible interest” or a “significant legal relationship” with the person whose record is being sought. However, informational copies of any vital record are available to requesters who complete an application and provide identification. (http://www.state.sd.us/doh/VitalRec/vital.htm)

Some states like Rhode Island and Colorado have guidelines similar to South Dakota. Colorado will issue copies of birth records to the “person named on the record, members of the immediate family, legal representatives of those named above, and others demonstrating a direct and tangible interest in the record.” Certified copies of death records may be issued to “parents; grandparents; stepparents; siblings; spouse; adult children, stepchildren or grandchildren of the deceased; legal representatives of any of the above; legal representatives of the deceased; probate researchers; genealogists representing family members with appropriate credentials; others who may demonstrate a direct and tangible interest when information is needed for determination or protection of a personal property right.” (http://www.cdphe.state.co.us/hs/vrfaqs.html )
Other states such as Oklahoma, Missouri, New Hampshire, Texas, Iowa, South Carolina and West Virginia have similar limits to access. West Virginia states boldly that it “is not an ‘open record’ state.” (http://www.wvdhhr.org/bph/oehp/hsc/birtcert.htm )

Some states such as California have passed laws in response to the Terrorism Prevention Act. One such law reads that to “help protect against identity theft, the law requires that only an authorized person (as defined by law) may receive a Certified Copy of a birth or death record.” (www.dhs.ca.gov/hisp/chs/OVR/amendments/ )

Other states like New Jersey allow public access to informational copies of vital records, but to obtain a certified copy requires proof from the subject of the record. Since 1994, New Jersey has limited access to cause of death information on a death certificates to “surviving spouses, caretaking partners, parents, executors or other authorized representatives [who] may see the entire death certificate.” (www.gti.net/mocolib1/vital.html )

Among other states who also limit cause of death information are Florida and Tennessee.

What you can do:

Get in touch with your state’s FOI coalition and your state’s vital records officials and begin discussing ways to avoid an all-or-nothing approach. Sponsor a roundtable discussion, and do stories on the issue.