our forty-first keep-wearing-that-mask-just-a-little-longer newsletter

OUR LEGAL FIGHT TO OPEN 1.6 MILLION NYC DEATH CERTIFICATES MOVES FORWARD

Reclaim The Records' two-year legal battle with multiple New York City government agencies makes headway, now goes before the judge

Hello again from your friends at Reclaim The Records! Today we have an exciting update in our long-running legal battle to (1) acquire and then release to the public about 1.6 million currently-inaccessible NYC death certificates from 1949-1968, totally free, as uncertified digital scans that we want to put online, and (2) strike down some truly awful new rules that heavily restrict public access to twentieth century New York City vital records, even from some of the relatives of the people directly named in the records.

This project originally started back in October 2017, when the City held a public hearing at which none of the people in attendance and none of the more than six thousand people nationwide who submitted public comments voiced support for the new and incredibly strict record access rules. But the City went ahead and approved the stricter rule change anyway.

Well, that just wouldn't do. So in February 2019, we sued them.

And it was quite a long list of "them". The Respondents in our case include the New York City Department of Mental Health and Hygiene, the New York City Bureau of Vital Statistics; the New York City Board of Health; Oxiris Barbot in her official capacity as New York City Commissioner of Health; Gretchen Van Wye in her official capacity as New York City Registrar; and last but certainly not least, Steven P. Schwartz in his official capacity as former New York City Registrar.

We had one court hearing in November 2019 and one in early 2020, before two different judges, facing off with the City over some of the issues. And then the pandemic struck, and things in the New York City court system understandably got put on hold for a while.

But now, we've got some movement -- and, you guys, we don't want to jinx it, but it seems to be looking promising.

Check out the fun legal paperwork!

There are a lot of interesting legal nerd issues to talk about in this case. It's not just "can we plz have copies of a cousin's death certificate" it's also a lot of discussion about whether a city agency can make rules and policies, even if that agency has been given lots of discretionary powers, that can override the state's laws, particularly a state Freedom of Information Law. And when an agency does make rules, were they made capriciously? Were they overstepping their specific areas of expertise? Can a Department of Health really hold itself up as an expert on privacy?

These are the kinds of issues that we will likely be dealing with in every state and territory, as we continue our nationwide work to fight for better public records access. So even if these New York records aren't part of your personal family tree, think about the underlying concepts and arguments, and how they could be applied to someday release more records in your area of interest.

Okay, so let's read through the legal timeline:

• Our original FOIL request (February 2019) Hi NYC, can we please have 1.6 million records, in digital format? We'll pay you for the hard drives.
• Our Article 78 Petition (April 2019) We then rolled that FOIL request up with an attempt to strike down the city's awful new access rules. And we solicited affidavits from different kinds of genealogists and other researchers negatively affected by the embargo dates.
• Our Affidavit #1 - Roger Joslyn Roger Joslyn is a past president of the Association for Professional Genealogists (APG) and an expert witness who has been working with New York City vital records for decades. He compares and contrasts the difficulty in getting records in New York City to other areas of the country, where it is far easier.
• Our Affidavit #2 - Megan Smolenyak Megan Smolenyak is a member of our Board of Directors. She is a consultant to the U.S. Army who assists them in identifying and locating genetic matches and also the legal next of kin of soldiers killed overseas during WWII and the Korean War, so that they can be brought back to the US for burial.
• Our Affidavit #3 - David Bushman David Bushman was a retired attorney with New York City roots -- and a carrier of a mutated BRCA1 gene, which causes multiple types of aggressive cancers. He was blocked from finding and warning distant relatives of their health risks, because cousins and other more distant categories of kinship are currently excluded by NYC from receiving even uncertified "informational" copies of historical death certificates. Sadly, David died of covid-19 early last year. We continue this fight for records access in his memory.
• Our Affidavit #4 - Kelly Bodami Kelly Bodami helps people pursue Italian dual citizenship, which is based on descent. That means it requires paperwork to show an unbroken chain. She has a running list of over thirty people whose ability to regain their family's nationality has been severely disrupted or made impossible by the ineptitude of the NYC Department of Health and Mental Hygiene in not allowing access to historical death certificates.
• The City's Motion to Dismiss (July 2019) The city tried to get the whole case thrown out as having no basis whatsoever. And to our surprise, they didn't even try to provide a rationale for the FOIL part of the case.
• Our Memorandum of Law in Opposition to the City's Motion to Dismiss (July 2019) And we were like "naaaaah". Lots of nerdy legal discussions ensue in here about the power relationship between the city and the state, "ultra vires" decisions, and Boreali factors.
• The City's Reply Brief (December 2019) Then, following some exciting in-person arguments, the judge forced the City to issue another response. It wasn't much better than their original one, though.
• Our Surreply (December 2019) And then we got to file a reply to their reply, which is known as a surreply, which is legalese for "no u".
• ~ then we had a stressful one year interlude, mostly due to the pandemic shutting down the court system in New York ~
• NEW! Decision and Order on Motion to Dismiss (December 2020) This one's from the judge! She looked at the arguments on both sides and she struck down the city's Motion to Dismiss, leaving three of our four causes of action intact, and ordered the city to finally prepare a Verified Response to our Article 78 Petition.
• NEW! The City's Verified Answer to our Petition (March 2021) It's, uh, kind of underwhelming. They basically deny, deny, deny everything.
• NEW! The City's Memorandum of Law in Response to our Petition And the city responds some more, but gets even the basic facts of the case wrong: "To require disclosure of these records to Petitioner would deprive New York City residents of privacy rights that are currently held by all other residents of this State." This is exactly backwards! These records are open for these years, in the rest of the state! And it just carries on in that vein for a while. Yikes.
• NEW! Our Verified Reply to the Verified Answer (March 2021) And we're like oh no you don't.
• NEW! Our Memorandum of Law in Further Support of Our Article 78 Petition (March 2021) And this is where some of the fun happens! Come for the discussion of the City hypothetically suing local cemeteries for supposed privacy invasions, stay for the unexpected "Hamilton" references.
• NEW! Our Affidavit #5 - Brooke Schreier Ganz (March 2021) Did you ever wonder what would happen if you caught a major American city's Department of Health in an "astroturf" campaign where they created fake support for a government policy that actually came entirely from city officials? And you got the smoking gun right from their own e-mails? And from transcriptions that were made from overpriced audio recordings of a panel at the 2019 National Genealogical Society conference in Washington, DC?

Wait, what?

Yup. We caught New York City officials in what's known as an "astroturf" campaign, so-called because it is fake grassroots support. (Get it, grass roots?) In a successful FOIL request from 2018, which we just happened to not mention to the city attorneys, a certain member of our Board of Directors personally requested and was granted (without a lawsuit!) copies of thousands of e-mails to and from the official e-mail addresses of the New York City Department of Health and Mental Hygiene, under the state Freedom of Information Law (FOIL).

And we read every single one of them.

About 30-40% of the e-mails were mundane complaints about their video conference software not working, call-in numbers not picking up, and meetings having to be rescheduled. Tedious. But we kept reading.

And we discovered that the very same Department of Health and Mental Hygiene city officials who were in charge of proposing and changing these records access rules, and gathering public comments on their plans, solicited and actually wrote the two (and only two) "letters of support" they received about the rule change: one from the New York State Registrar, and one from NAPHSIS.

NAPHSIS, you might remember from past newsletters, is the non-profit organization that supposedly thinks that embargo periods on records should be extended, to prevent fraud. The fact that they also have been given exclusive access by those state Departments of Health to sell access to those same vital records and public data sets, the ones that they claim the general (non-paying) public shouldn't have access to, through a special database system that NAPHSIS has set up with LexisNexis, is probably just a very lucrative coincidence.

Except, of course, that the executive director of NAPHSIS then went on the record at a 2019 National Genealogical Society panel about how there really, truly isn't any correlation between vital records embargo periods and identity theft or fraud. Exactly like we've been saying all along.

(Shout-out to the great crew at RPAC, the Records Preservation and Access Coalition, who led that panel at NGS, which may well end up paying off for all of us for many years and many lawsuits to come.)

So what now?

Well, now we wait to hear what the judge has to say. It will probably be several more months. We could win all of the case, part of the case, or none of it.

If we win the FOIL part of the case, we could get the ~1.6 million records, which we would then publish online for free public use, without any kind of paywalls or usage agreements. We'd work with other groups to set up indexing projects for all the new data. We might even get all the 1969 and 1970 records as well, since those sets are now more than fifty years old, since this lawsuit has taken two years and counting. So it could be closer to ~1.9 million records.

As for the "ultra vires" access rules part of the case, the Judge's Order in December 2020 said that we were time-barred on one of the two access rules that the city had enacted, even though they had always talked in their meetings about enacting both halves of the rule change together as one package:

"RTR was aggrieved on the dates that Access Rules became effective; on April 17, 2018 for Health Code § 207.21 and on January 1, 2019 for Health Code § 207.11. Prior to these dates the impact of the [regulations] on the petitioners could [not] be “accurately assessed.”...Accordingly, as the petition was filed on April 19, 2019, more than four months after the effective date of Health Code § 207.21, any challenge to Health Code § 207.21 is dismissed as time-barred. However, challenges to Health Code § 207.11 are timely."

This means that the second part of the rules, the list of the kinds of people who are allowed to access NYC vital records, can still potentially be struck down by the courts, as not being broad enough. The city would have to go back and redo those rules, and this time they would actually have to listen to the thousands of comments that came in about the cousins, the step-relations, the professional genealogists, and others who really ought to have access to these files, too, just as they do in many other states.

And as for the first part of those access rules, the awful part about new 125-year restrictions on birth certificates and 75-year restrictions on death certificates? Well, even though we're "time-barred" there, if we do win the FOIL part of the case, meaning that uncertified "informational" copies must be granted at the same more permissive level equalized with the rest of New York State? Well, then that horrid embargo rule becomes essentially meaningless.

So, how can I help get a lawsuit like this going in my state?

Well, this is the part of the newsletter where we ask you for donations to help support our work. And as you can see, these cases take a lot of work. It's huge amounts of legal research, coupled with deep knowledge of genealogical norms and standards. But we learn more every time we do one of these filings, and we get better at anticipating the government's silly arguments, and have more answers for them at the ready, and even have some favorite caselaw to cite.

And that's why Reclaim The Records exists.

Whether it's suing Missouri and proving that they broke their own law knowingly and purposefully, or even taking on the US National Archives itself, we think big, and we get it done. And your continued support means we can keep hiring our awesome attorneys and planning new ways to go reclaim our records, for everyone.

From all of us at RTR, thank you for your support! It means a lot.

Extra-special shout-out to our amazing attorney Michael Moritz, who is also an experienced genealogist. As you can see from this newsletter, he has put in an amazing amount of time and effort working to try to reclaim these records over the past few years, and we are so thankful for his help!

Next up: new Connecticut records coming! And we didn't need a lawsuit at all.