What are public records?

An issue was raised in a recent discussion on Jewishgen.org concerning the availability of birth and death records from the New York City Department of Health. The issue appears in a discussion email from Allan Jordan who inquired about obtaining a birth certificate from 1910 or newer and that quotes the New York City Department of Health reply as stating:

We do not follow that state law. NYC is a closed jurisdiction and we are not public records. For birth and death certificates you must show entitlement. There aren't an amount of years when our records become public yet.

This raises an interesting question for genealogists as to what is and what is not a "public record." It also raises an issue of when governments can declare records to be only available by entitlement when the governmental agency defines entitlement. These issues and others will be part of the discussion of the upcoming International Association of Jewish Genealogical Societies Conference in Salt Lake City, Utah from July 27th to August 1st, 2014.

At the beginning of this discussion, it is important to note that this type of attitude and provisions such as these limiting access to certain types of records are general throughout the United States. The time limits and requirements for access vary from state to state as do the charges for obtaining the records. It would be easy to explain this situation as merely a way to enhance revenues, but it is a lot more complicated than that.

Many beginning genealogists assume they have an absolute right to see whatever records they want to research about their "family." They are surprised and sometimes angry when they find out that obtaining so-called "public records" is not as easy as it appears from the word public. Public does not mean free, neither does it mean that anyone has access to the records. So, there are two separate issues; access and fees.

Fees have been charged to obtain copies of records for as long as anyone could figure out that it could be done. As an attorney, I was used to paying all sorts of fees for filing documents, obtaining copies of documents and sometimes merely looking at documents. There are two levels of copies of documents that have emerged; official or certified copies and unofficial copies. For example, here in Utah a Certified Copy of a Birth Certificate has the following charges:

CERTIFIED COPY OF UTAH BIRTH CERTIFICATE
$52.87 Online Processing Fee
$10.95 Authorized Utah Agency Merchant Fee
$35.00 Utah State Government Fee
$98.82 Total Fee (Additional Copies: $60.87 each) 

Delivery Options
$19.00 *UPS Air Shipping Delivery (includes multiple copies)
$16.50 *UPS 2 Day Air Shipping
Free Regular Mail

Mind you, this is for a piece of paper with an official stamp. Also, beware, there are a huge number of companies out there who will obtain a copy of a birth certificate or other document and tack on their own fees in addition to the cost from the state.

Utah is not likely the state with the highest charges but it is certainly up there among the highest. As another example, Florida has a very complicated process, but charges as follows:

(Type of birth certificate and routine processing times)

1. Computer certification $9.00 | Processed within 1 to 3 days
2. Photocopy certification $14.00 |For births prior to 2004 processed within 3 to 5 days
3. Commemorative Certification $34.00 -Signed by the current Governor and certified by the State Registrar. | Processed within 4 to 6 weeks. Refer to section addressing commemorative certificates.
4. Rush Services- If faster service is desired, you have the option to include an additional fee of $10.00 to expedite the processing time to 1 to 2 business days.

 For most genealogical research issues, unofficial copies of the birth certificates will suffice.

Fees are a fact of life, but what about access? Well, it turns out that every state in the U.S. has some kind of restriction on access to both death and birth records. Florida's requirements for access are indicative of the general types of access requirements:

ELIGIBILITY: Birth certificates can be issued only to:
1. Registrant (the child named on the record) if of legal age (18)
2. Parent(s) listed on the Birth Record
3. Legal Guardian (must provide guardianship papers)
4. Legal representative of one of the above persons
5. Other person(s) by court order (must provide recorded or certified copy of court order)
In the case of a deceased registrant, upon receipt of the death certificate of the decedent, a certification of the birth certificate can be issued to the
spouse, child, grandchild, sibling, if of legal age, or to the legal representative of any of these persons as well as to the parent.
Any person of legal age may be issued a certified copy of a birth record (except for those birth records under seal) for a birth event that occurred
over 100 years ago. 

What should be evident from these examples is that there are definitely different categories of documents generated by state and local agencies. Perhaps you can begin to appreciate what it takes to provide millions of online documents for free or a nominal subscription price.

Although I fully sympathize with the concerns implied by the discussion at the IAJGS Conference, I don't see this system changing any time in the near or distant future. The reasons given by the states and other jurisdictions for withholding or charging for access to certain records include privacy issues and other excuses, some of which are bogus. The charges are essentially a use tax and we are not likely to abolish taxes anytime soon. Access is restricted otherwise there would be no way to justify the tax.

I could discuss the issue of privacy, as I have in the past, but in this context, there is really nothing to discuss. Most, if not all, these restrictions have been in place long before anyone heard of identity theft as an issue. If you can answer this question, you can explain this whole issue. Why does it presently cost $319.00 to file a civil lawsuit in Maricopa County, Arizona?