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Saturday, July 20, 2019

Missouri Actively Resists Public Disclosure Laws: All Genealogists Need to Read This


I am going to reproduce the entire content of an email from Reclaim the Record. See https://mailchi.mp/reclaimtherecords/the-show-me-state-doesnt-want-to-show-missouri-birth-and-death-index?e=87d2371d01

I am begging every genealogist who spends a few minutes to read this long email account of the refusal and blatant actions of the Missouri Department of Health and Senior Services to share this post and the quoted letter as many times as possible. I am fed up with the government lying and refusing to follow the law at all levels. We all need to take a stand on this issue in our own jurisdictions. Here is the entire explanation, you decide for yourself.

our thirty-first action-packed newsletter

WHY WON'T THE SHOW-ME STATE SHOW THEIR PUBLIC RECORDS TO THE PUBLIC?

An update on our longest-running legal battle, the fight for the first
free and public copy of the Missouri birth index and death index

Greetings from Reclaim The Records! We're that little non-profit activist group of genealogists, historians, teachers, journalists, open government advocates, and other troublemakers who fight for the release of historical and genealogical materials from government agencies, archives, and libraries.
We're writing to you today with an update on our longest-running lawsuit, a Missouri Sunshine Law case that we originally filed way back in November 2016 against the Missouri Department of Health and Senior Services. We're trying to get the first-ever public and free copies of the Missouri birth index for 1920(ish)-2015 and the Missouri death index for 1968-2015. We just filed for a Motion for Summary Judgment in the case, and we wanted to bring everyone up to speed on what's been going on, since it's been a while since we last talked about these records.
Fair warning: this is a long e-mail.
But if you like reading stories about the little guys (genealogy nerds! historian dorks! all volunteers!) fighting back against really blatant government malfeasance, in a case that has already won some national-level attention and even some awards, you're probably gonna like this one.

Part I: A little backstory

Back in early 2016, when we at Reclaim The Records were stlll baby activists with only two Freedom of Information lawsuits under our belt, and before we had formally incorporated as a 501(c)3 non-profit organization, we asked the Missouri Department of Health and Senior Services (DHSS) if we could have a copy of their state birth index and death index. This way, genealogists and historians and journalists could all use the data in our research.
Most other states make this kind of basic vital records index data freely available, sometimes in books or on microfilm, but increasingly in online sources. To their credit, Missouri does put their old death certificates online if they're more than fifty years old, and those certificates have been indexed by volunteers and turned into a searchable database hosted on a state website. And that's great! But for more recent years of the death index, and for almost all births after 1910, which is when vital records started being kept at the state level, there was almost nothing available for researchers to use, not even an index. And that was really frustrating.
So, just to be clear: we weren't asking for any actual certificate copies, just some lists of names and dates. And we thought this would be uncontroversial -- because Missouri's own law says that this name-and-date index data is not restricted and may be disclosed upon request:
Screenshot of Missouri laws about vital records
Well, that seems pretty straightforward, right? And so we blithely made our two Sunshine Law requests, one asking for the birth index listing and one asking for the death index listing.
And initially, the people at the Missouri DHSS said...yes! They agreed that yes, we could get this simple database export of names and dates...
...for an estimated cost of approximately $1.5 MILLION DOLLARS and several YEARS of twenty-four-hours-a-day work by their staff.
Screenshot of invoice from Missouri DHSS
(Can you imagine what we thought when we first saw that e-mail arrive? ๐Ÿ˜ฑ)
This astonishing cost estimate and time estimate for a simple text database export was so ridiculous, and so incredibly out of line with other government agencies' behavior, that it actually netted Missouri's DHSS two major "honors" that year. Thanks to our advocacy work, DHSS was awarded the "Outrageous Fee Award" in the 2017 "Foilies" from the Electronic Frontier Foundation (the EFF), whose criteria for inclusion is "Recognizing the Year’s Worst in Government Transparency". And also thanks to our advocacy, DHSS was named as a finalist for the prestigious and satiric 2017 Golden Padlock Award from the journalist group Investigative Reporters and Editors (IRE), "for extraordinary efforts keeping population statistics from the population".
Clearly, we were going to need some help with these Sunshine Law requests. We hired Bernie Rhodes of Lathrop and Gage, a well-known media law and First Amendment attorney based in Missouri. We had Bernie take the lead on all our conversations and negotiations with DHSS from that point forwards. And with his help, and a little open source info-gathering that we did by cold-calling Missouri's database vendor's tech support phone number (no, really!), we finally got DHSS to concede, in writing, that the actual cost estimate for a copy of the birth index and death index should have been more like $5,000, not $1.5 million.
A minor mistake, happens all the time, surely you understand.
But we pushed back on DHSS again, and explained that actually, the simple database dump of the death index and birth index could probably be done for something like $500 in labor costs, plus maybe a little more if they included the price of a USB drive and the shipping costs. And we were willing and able to pay.
And it was only then, after many months of back-and-forth e-mails and calls and estimate revisions, that DHSS suddenly said that they had "decided" not to provide this public info, that they thought they had the legal right to say no, that they were allowed to have discretion in their disclosure, and it was coincidentally just when we had gotten the costs reduced to a tiny, tiny fraction of their initial estimate.
Gosh, that sure was convenient timing!
It was also illegal. The Missouri Sunshine Law says a government agency has to (1) approve or deny a Sunshine Law request in the first three days of its receipt, not many months later after already approving it in writing and even revising their invoices and estimates multiple times, and (2) the agency must also provide their legal reasoning why a request should be rejected.
So, we (via Bernie) wrote DHSS a very nice letter and explained to them in detail why they were very, very wrong, and we did warn them that we would sue. Here is that letter. It's very straightforward. But DHSS never bothered to reply to the letter at all.
And so, as often happens in these sorts of stories where we at Reclaim The Records run up against a recalcitrant government agency who doesn't like providing public info to the public, WE SUED THEM. ๐Ÿฅณ
So that's the highlights of the backstory. For more specific details, check out our thirteenth newsletter, which we sent out that same November.

Part II: Discovery

After we filed our lawsuit in Cole County in late 2016, the state of Missouri bounced our case around to at least four different Assistant Attorneys General throughout all of 2017-2018, wasting everyone's time as each new attorney had to get up to speed on all the case documents before suddenly moving on. Granted, Missouri's Assistant Attorneys General were also very busy with some other Sunshine Law cases in that same time period, ones which made national news.
Meanwhile, DHSS' staff sat for depositions twice, turned over a bunch of agency e-mails and meeting notices and paperwork and other materials to us in discovery, and withheld some others.
And we found some really interesting information in there.
Like this one, an e-mail from Garland Land, the former State Registrar of Missouri, dated July 21, 2016. DHSS' staff had reached out to Land for advice about how to handle our Sunshine Law requests. And he wrote back to them, and gosh, it sure seems like he was really not a big fan of that whole "transparency in government" thing:
Screenshot of e-mail from Garland Land to DHSS staff
Did you guys get all that?
The former State Registrar advised DHSS' staff to try to force us to accept "mounds of paper" copies, rather than the real digital database file which is what the Missouri Sunshine Law requires be provided, when such a database is already available. ๐Ÿ™„ Can you imagine how much paper and printer toner it would take to print out an entire state vital records index? It sure seems like the only reason that someone would even suggest such a silly and environmentally wasteful thing is if they were trying to make it the information functionally unusable.
And then Land also told DHSS to make Reclaim The Records submit each date of the index day-by-individual-day, rather than accepting a date range in plain English. ๐Ÿ˜’ In other words, we were supposed to make one request for January 1, 1920, one for January 2, 1920, and so on... Again, this seems needlessly nitpicky, without a legal rationale, only designed to slow down the request and production of this index information to the public.
And then Land also told DHSS to reject the request and "require them to take you to court". ๐Ÿ˜  Now this part is just gross. It's a flat-out denial, but one based on strategy rather than the law, clearly hoping that we did not know our rights under the Sunshine Law and that we did not we have the stomach or the financial wherewithal to find and hire a attorney and file a lawsuit against them.
And finally came the cherry on top of the ice cream cone: Land also advised DHSS to GO CHANGE THE LAW ITSELF. ๐Ÿคฌ
(Also, in what possible universe would any "national geneological [sic]...expert" ever testify against the public release of a basic state vital records index?!)

Part III: Trying to change the law instead of following it

And yes, we found out that these folks at DHSS did try to change the state law! Luckily, they failed, at least so far.
Yes, that's right, rather than comply with their own law that clearly states that names and dates of people who were born or died in the state "may be disclosed upon request"Missouri's own Department of Health tried to get their state legislature to change the law, to close off all future public access to the state birth index and death index, the same kind of data that is routinely and freely published by other states, including by their surrounding neighbor states.
Luckily, the Missouri State Legislature refused to go along with the scheme.
It's interesting to note, just as a contrast, that during the same exact time period that the Department of Health in Missouri was freaking out and breaking the Sunshine Law and even trying to change their own state vital records law, the Department of Health in Missouri's next-door-neighbor state Oklahoma was taking the opposite approach! They were opening up their index data, making it moreavailable to the public. In January 2017, Oklahoma created and published a terrific new website called OK2Explore, with freely searchable birth and death indices for the public to use, to help people locate family members and easily order vital records certificate copies, if they were eligible to receive one. Nice job, Oklahoma!
Oklahoma even has some extra information available in their state vital records indices that Missouri's indices do not have, including extra helpful database fields for gender, certificate number, and the county name, to help disambiguate between different individuals with common names. But the only thing Missouri's indices would allow, if they were provided to us, is surname, given name, and date, and that's it.
And yet Missouri was making like Chicken Little and claiming that the sky would fall and everyone's privacy would be destroyed if even this most basic state index were ever put on the Internet.
But what's really interesting is that Missouri has been claiming in their legal paperwork that they already have some right to withhold this basic public data from the public, which is the rationale they gave our attorney when they suddenly denied our requests after months of discussions. If that's true, if they already have that legal right, then why would they suddenly sneak around and try to lobby their legislature to change their own state law? ๐Ÿค”

Part IV: The Registrars Strike Back

By the way, Garland Land is not just another former or current State Registrar or archives director trying to explicitly subvert a state Freedom of Information Law or Sunshine Law. No, unfortunately, that's incredibly common behavior these days.
No, see, Land is also the former executive director of a national organization called NAPHSIS and he worked as a consultant to them after leaving his job as the Missouri State Registrar. You might have heard of NAPHSIS as the people lurking behind the scenes on many of the recent nationwide attempts to sharply restrict public access to our vital records and yes, even just the basic indices to vital records, as happened recently in New York City, in the District of Columbia, etc. What you might not know is that while NAPHSIS goes around to these jurisidctions trying to clamp down on public access to vital records data, they have been simultaneously monetizing that exact same data for their own organization's profit. They sell exclusive access to some of this public vital records data to big companies around the world through a "product" of theirs called EVVE-FOD, while they also work to change laws and regulations to deny it to the American public!
We at Reclaim The Records are going to have a lot more to say about NAPHSIS and their "records cartel" in the coming years. They deserve far more public scrutiny and exposure, and we intend to deliver it. But we'll save all that fun for another newsletter...
And in another interesting coincidence, a former president of this same organization NAPHSIS is...Stephen Schwartz. You might remember his name from our twenty-ninth newsletter, because we're currently suing him in another one of our ongoing lawsuits, in New York City over the city's abitrary and capricious rulemaking that slammed shut access to historical birth and death records in New York City, far beyond the rules for the rest of the country, or even the rest of New York State.
But Schwartz briefly shows up in this Missouri Sunshine Law case, too! Because in our discovery, we also got the e-mails and calendar notices of Missouri's currentState Registrar, Craig Ward, and we found out he was reaching out to Schwartz and to several other State Registrars across the country by e-mail and by phone, seeking dirt on Reclaim The Records. ๐Ÿ™ƒ
We got their e-mails and we got their calendar invites. And we even got a copy of an e-mail from Schwartz, who was then the Registrar of New York City, congratulating Ward on his Department's decision to deny these Sunshine Law requests for public copies of the two indices. Ugh.
But you know what, we at Reclaim The Records have decided to take all this as a kind of back-handed compliment about our work, and our effectiveness at releasing public data. These guys wouldn't be talking about us if they weren't worried. After all, Beyoncรฉ said it best: "you know you 'that b$%*h' when you cause all this conversation."

Part V: We find a possible motive

And they were right to be worried about us, because then we found some more fun stuff in DHSS' e-mails in discovery. How fun, you ask?
Like, oh, that DHSS HAS BEEN SELLING MISSOURI RESIDENTS' DATA FOR YEARS. The very same data that they were now denying to us, to the public.
Yes. Selling. Really.
Here are their official rate sheets (click on the images for larger versions):
Screenshot of Missouri fee schedule, page 1 of 2Screenshot of Missouri fee schedule, page 2 of 2
This meant we suddenly had a possible motive as to why DHSS didn't want to fulfill our perfectly reasonable Sunshine Law requests, first by quoting us an astronomical and unsupportable price ($1.5 million!) meant to deter us, then by writing internally about possible ways to slow down the production of the documents like printing them all out on paper or requiring dates to be provided one-by-one, and then finally by blocking our requests entirely when we called them out...
They wanted the revenue. If we at Reclaim The Records get the Missouri state birth index and death index and we put it online for free -- and we at Reclaim The Records always make all the historical records we get totally free for public use, no paywalls or usage agreement or copyrights or anything -- then Missouri would probably not be able to make any money selling that same data to researchers and epidemiologists in future years. DHSS would lose their nice little ongoing revenue bump for their agency's budget.
And if you look at those fee schedule images closely, you'll notice that DHSS is even selling data that is far more invasive that the simple name-and-date index lists we had asked about for genealogical purposes. It sure looks like DHSS is selling things like linked lists of all pregnancies born to Missouri women, and even lists of in-state birth defects.
That all sounds a little, well, creepy. Maybe some journalist should ask them more about this?
In any case, DHSS staff eventually admitted to our attorney in their depositions that they had sold this kind of birth-and-death data, the exact type we were asking for, including requests spanning multiple dates, many times before we came along asking for it too. And yet they turned down our request. So weird, right?
But wait, there's more!

Part VI: They padded the salaries, not just the hours

While deposing the DHSS staff about this case, our intrepid attorney Bernie Rhodes noticed something amazing. DHSS had originally quoted us that crazy-high price, $1.5 million for a database dump, because they said it would take many, many hours to individually write each separate program for each separate date and then run them all, one by one.
Now, we did manage to get DHSS to concede that no, it shouldn't really take that long to export this data if you just ran a date range search instead of searching each individual date one at a time. But Bernie noticed something else wrong with DHSS' estimates, something that we hadn't thought about.
Under most state Freedom of Information laws, a requestor can only get charged the actual hourly rate of the lowest-paid person on a government agency's staff who is capable of fulfilling the request: making the copies, programming the database export, whatever. In Missouri, it's very similar: the requestor gets charged the average of the salaries of all the people in the lowest-paid position on staff that is capable of doing the work.
And DHSS told us that hourly rate of the people on their staff who could conceivably do all this database programming and data export for us. They even told us that number multiple times, as they kept refining the estimate. But...they lied.
Bernie figured out that DHSS had done two things wrong. First, rather than taking the average salary of the lowest-paid staff category who could possibly do the work, DHSS took the “average” and the “maximum” rate of pay of the highest-paidclass and averaged those numbers.
Which, yeah, that really doesn't make any sense. Could just be a mistake, though, right?
But then Bernie found that DHSS had also rolled some weird "fringe benefits" calculations into this already-incorrect hourly rate. DHSS added an "indirect allocation" of general administrative expense factor of 20.9%, they added a "network" charge, they added a "server" charge, and so on. This bizarro calculation just about doubled the hourly rate that DHSS quoted to us in their estimates. So DHSS was not just inflating the hours needed to get all the data exported, they inflated the hourly salaries that we, the public, would have to pay them, too.
And that's definitely not allowed under the Sunshine Law.
(Had we actually paid all this extra money for the work, by the way, it would presumably have gone right into DHSS' pockets...uh, we mean their budget. But you probably guessed that one by now.)
But Bernie figured it out, and busted them. Bernie did the math! Be like Bernie.

Part VII: Presenting our Motion for Summary Judgment

So! After all these shenanigans and delays, we finally went and filed our Motion for Summary Judgment about two months ago, in late May. This means that we think the uncontested facts of this case, the ones taken from DHSS' own deposition transcripts and documentation and e-mails and actions, are really, really in our favor.
And now we're going to show you guys our legal paperwork, so you can read the files, and share them, and give your opinions, legal or genealogical or otherwise, on this whole wacky, shady, ridiculous story.
First up, here's our actual Motion for Summary Judgment, which is twenty-five pages long. This is the meat of the thing, dry and factual, because it's sticking to statements and topics that even DHSS has agreed are not in dispute. It's still kind of shocking to see it all laid out so plainly, though, even without the commentary.
Second, here is our "Suggestions in Support of Plaintiffs' Motion for Summary Judgment" documentThis one is much more entertaining! It's a thirty-six page legal document with awesome sub-headings like:
  • "The secret plan to deny Ms. Ganz’s request"
  • "Looking for dirt on Reclaim the Records"
  • "DHSS executes the secret plan"
  • "DHSS’ hourly charges are double the “average hourly rate of pay”"
...and so on. You can really tell that Bernie and his associate Taryn Nash genuinely enjoyed writing this one up for the judge.
Third, here is our founder/president/chief troublemaker's own affidavit, from Brooke Schreier Ganz, because her name is the one listed on this case along with Reclaim The Records as an organization. This is the document where we try to explain to the judge that we are not pursuing these vital records indices frivolously or for profit, and that we are all Very Serious Genealogy Nerds. That's why it goes into so much detail about Brooke's background, Reclaim The Records' background, and also guest-stars the impeccable bios and CV's of our entire awesome board of directors.
And fourth, here is the affidavit of Bernie himself. Because we had retained him as our attorney so early in the process of all our back-and-forth phone and e-mail discussions with DHSS (phew, it's a good thing we did that), he was therefore able to attest to much of their behavior firsthand.
Please take a look at these documents, but most especially the second one, and let us know what you think of them, whether it's on our Facebook page, or through @ReclaimTheRecs at Twitter, or whether you just share them amongst your genealogy and journalist friends. Help us get the word about about this incredible story to the entire genealogist, historian, and open records community!
And by the way, you're also welcome to repost this entire newsletter, word for word, anywhere you like, including in your own genealogy or historical society newsletters or e-mails or whatever, as long as you credit us and it's non-commercial. (As you can see from the very bottom of this e-mail, all of our newsletters are under a Creative Commons BY-NC-SA license. We really do like sharing!)

Part VIII: What comes next?

So, what's next? Well, the Missouri Attorney General's Office are the people who now have to defend their Department of Health's behavior in the lawsuit. And since we submitted our Motion for Summary Judgment in late May, they have so far continued their grand tradition of being totally disorganized while also attempting to delay justice. They just had a motion to switch the attorneys assigned to the case again! That's, like, the fifth or sixth Assistant Attorney General attached to this case so far? Maybe? We lost count a while back. For reference, we first started this case way back under the former state Attorney General Josh Hawley, and he doesn't even work in their office anymore, he's now off being a United States Senator.
And here's a news article about our case from Missouri journalist Tony Messenger talking about Josh Hawley's hypocritical behavior in our case. Tony Messenger, by the way, just won the Pulitzer Prize a few months ago for his work at the St. Louis Post-Dispatch. He's covered stories about the Missouri Sunshine Law for years, it's one of his specialties.
And here's what he wrote about Reclaim The Records' case for the birth index and death index a few days ago, on Twitter:
Screenshot of Tweet from Tony Messenger
So now we have to sit tight and wait for the state to produce their response to our Motion for Summary Judgment, and then see what new shenanigans and creative excuses they supply. And then we should get a few weeks to make our reply to that response. And then we wait for the judge to rule, and hope that we will finally get a chance to reclaim these important records.
We're also asking the judge for the reimbursement of our attorneys fees. Even if we do win the case, even if we get the birth index and death index, we still might not get our fees awarded, it's not a sure thing. From reading the news it does seem like attorneys fees have been awarded more frequently in these cases lately, but that might just be because Missouri's cases keep making national news for being so incredibly blatant about their state government officials breaking the Sunshine Law.
We're also trying for a bit of a long shot, and we're also asking for fines to be awaded, on top of our legal fees. Missouri is one of the only states in the US where their state Freedom of Information law allows for the possibility of fines being awarded, up to $5,000 per Sunshine Law request, if it can be proven that a government agency truly withheld the records purposely and maliciously, not accidentally or in a good faith disagreement.
For obvious reasons, we think the case qualifies! But we're aware that it's very rare to also get awarded fines. It's still worth it to try, though.
And if we win? Well, then we'll go put all of this data online for everyone, for free, just like we always do! No paywalls, no logins, no copyrights, no usage agreement, none of that stuff.
And then we -- genealogists, historians, teachers, journalists, everyone -- will be able to do more historical research right from our own homes. We'll finally be able to do a quick search and find out whether or not a certain John Doe or Jane Doe even existed in the state of Missouri's vital records at some point. You may or may not have the right to order a copy of that certificate, depending on how recent the record is and how closely you are related to the person, but at least you'll have a finding aid to determine whether or not the record exists in the first place.
Now, it's also possible that we might not win this Motion for Summary Judgment. But if not, it's okay! If that's the case, then we'll just move on to a trial, no big deal.
See, we at Reclaim The Records are totally determined to see this case through. A state's birth index and death index are PUBLIC RECORDS and they belong to the PUBLIC. And they are certainly not meant to be some exclusive revenue source for state government agencies to secretly SELL to others, and/or to boost their own budget, while simultaneously denying a copy of the very same documents and data to the public.

Part IX: And here is the part where you can help us

And that is our update on our Missouri case. We at Reclaim The Records do this kind of work in Missouri, and in other states, because it just needs to be done. We want our records back!
And you can help us continue our records reclamation work, including in new states and cities, with your donation to Reclaim The Records. We're an IRS-recognized 501(c)3 non-profit organization, and your donations are tax-deductible in the United States to the extent allowed by law. Everyone on our board of directors is a volunteer. We use the funds we raise to do things like hire tireless attorneys, like Bernie Rhodes, to dig in and do this kind of work.
And as you can see, in the course of pursuing these old genealogical and historical records, sometimes we accidentally wind up muckraking and exposing some problems with local governments, too.
If you want laws to be followed instead of ignored, if you want public records returned to the public for public use, then this is one way you can help do that. And we thank you very much for your continued support!


Phew. We warned you guys this was a long e-mail! Thanks for reading all the way to the end. Coming very, very soon from us at Reclaim The Records: we're putting MILLIONS OF BRAND NEW TOTALLY FREE RECORDS ONLINE ALL SUMMER LONG, YAAAAAAY! We have an enormous backlog of new data collections from various city and state archives, all going online very soon! And we didn't even have to sue anyone for these new records, which was kind of a nice change. ๐Ÿ˜

2 comments:

  1. I REALLY hope Reclaim the Records pulls this one off, as they've done several times before. They're awesome.

    ReplyDelete
  2. I really hope Reclaim the Records pulls this one off, too.

    ReplyDelete