Keep the Massachusetts Tradition: Open Records
What Governor Baker Got Wrong in the Budget Bill
In the Budget Bill recently released by Gov. Charlie Baker is Section 42 of the Outside Bill. It ends Massachusetts open records policies in civil registration -- policies that have been in force since 1641. This is what it says in justification.
This section, along with thirteen others, updates the laws governing the registration of births, deaths, and marriages and the disclosure of corresponding records to align with national best practices for the protection of personally identifiable data and confidential health information.
The problem with this is that it is entirely wrong.
Governments and companies have already sold our birth and residence information to data aggregators. It is widely available on the Internet.
Our own vital statistics office has already sold our data to the Social Security Administration and to online family history sites.
FBI crime statistics show that records closure periods have no relationship to whether consumer identity theft takes place.
Bitglass reported 27.5 million breaches of personal medical information last year alone. To put that in perspective, that's 3.5 times the population of Massachusetts. That is an area where we need protection.
If Gov. Baker wanted to protect us, he would have suggested an internet privacy bill. Such bills have already passed in the European Union and in the state of California. Those bills protect privacy.
FBI Statistics and the Changed National Norm
Alec Ferretti and Alex Calzareth developed a graph showing consumer identity theft against the period of time that birth and death records are closed. They found that there was no correlation between identity theft and closure periods. States with totally open records (such as Massachusetts) have slightly less identity theft than states where those records are closed for 100 or more years.
This graph and its underlying data are hosted on a website called GitHub. You can view the data and see the graph here.
Gov. Baker's assessment was based on the 2011 Model Act promulgated by the The National Association for Public Health Statistics and Information Systems (NAPHSIS). The previous model acts for vital statistics have all been approved by the U.S. Centers for Disease Control. The last act the CDC approved was the 1992 Model Act.
Even NAPHSIS no longer stands by these draconian closure periods. The organization has a committee currently working on a 2020 Model Act. A senior official at NAPHSIS has commented that closure periods will probably be halved.
Ironically, Massachusetts has adopted every aspect of the 2011 Model Act that was appropriate to our deep history of open records. Massachusetts already has the computerized vital records system and security papers for certificates that the previous NAPHSIS-approved (but not CDC-approved) Model Act recommended. The Massachusetts Genealogy Council approved those aspects of the Act.
What Remedy Do We Have?
This is a time when genealogists from throughout the world should step up and be heard. It's not just Massachusetts genealogists who need to access this information. Genealogists across the US have ancestors in Massachusetts. Anyone filling out a Health Pedigree for their primary care physician needs access to the cause of death in these certificate. Health researchers at Harvard Medical School need this data. Women needing to prove family incidence of breast cancer to quality for medical genetics testing need access to this data. The governor's draconian measures hurt us all.
WRITE OR CALL THE GOVERNOR
There is an online form to email the Governor's office. There is a blank space for Subject. Although filling it in is optional, you will want to give the office a description so they will know what it is about. Just state, "Section 42 of the Budget Bill Outside Section."
WRITE OR CALL YOUR STATE SENATOR OR STATE REPRESENTATIVE
The Massachusetts General Court offers a website to find your state senator and state representative. You only have to put in your street address, town name, and zipcode. Go to this site:
The site will bring up photos of your legislators. Just click on their names and you will be taken to their individual pages. Their contact information is displayed there. You will have both their email and telephone contacts. Be sure to reference "Section 42 of the Budget Bill Outside Section."
You can also write to the Massachusetts Joint Committee Ways and Means by using a contact link here https://malegislature.gov/Committees/Detail/J39. If your legislator is listed here as a committee member, you can directly click on his or her name. Your voice in this matter will be especially powerful.
What Everyone Is Saying About This
GENEALOGISTS DISCUSS GOV. BAKER'S OUTSIDE SECTION
Judy G. Russell, The Legal Genealogist, on January 31, 2020, published "Open since 1641..." She observes, "And, sadly, it’s the same old tired “model” vital records act stuff that came out almost a decade ago from a conference of vital records officials that even that group no longer fully supports: if adopted, records that are absolutely open today — and have been for nearly 380 years — will be shuttered away for decades — birth and marriage records will be closed for 90 years from the date of birth or date or marriage, and death records will be close for 50 years from date of death."
Dick Eastman of Eastman's Online Genealogy Newsletter (EOGN), on 31 January 2020, published "Massachusetts Governor Seeks to Cut Access to Public Domain Records." He said, "Governor Charlie Baker is seeking to dramatically restrict who has access to Massachusetts birth records, death certificates, and marriage notices under a proposal that, if adopted, would exempt many of the documents from public view for a virtual lifetime."
Ryan Wood, EVP and COO of American Ancestors/New England Historic Genealogical Society, wrote a letter to the Chair of the House Ways and Means Committee. It is posted here.
Dick Eastman on February 13, 2020, posted "NEHGS Issues Statement Opposing Mass. Governor's Budge Proposals."
Judy G. Russell posted on February 14, 2020, her call to action, "Yes in Virginia. No in Massachusetts." She notes the case Ryan Woods made for open records. She says succinctly, "It’s really pretty simple: no records, no genealogy."
NEWSPAPERS COVER THE IMPACT
Matt Stout, state house reporter for the Boston Globe, broke this story on January 30, 2020, "In 'drastic' change, Baker wants births, death records secret in most cases. Marriage records would only become publicly available on the couple's 90th anniversary."
The Editorial Board of the Boston Globe wrote on February 1, 2020, "More sunshine, not less, needed with Massachusetts public records. A Baker Budget amendment would hinder public records access."
Christian W. Wade, the statehouse reporter for The Eagle-Tribune (Andover, Mass.), covered the issue on January 31, 2020, in "Massachusetts Gov. Baker Wants to Limit Vital Records Access." His article was also published in the Salem News.
Christopher Gavin, a reporter for the Boston Globe, wrote on January 31, 2020, "Charlie Baker wants to restrict access to birth, death, and marriage records. Here’s what to know."
Steph Solis, a reporter for MassLive, reported on 31 January 2020, "Tucked into Massachusetts Gov. Charlie Baker’s budget is a provision to make birth, death certificates mostly secret."
The Salem News editorial board, on February 4, 2020, published, "Our view: Don't deny access to vital records."
Karen Anderson, a reporter for WCVB Channel 5, covered this issue on January 31, 2020, in her segment on "Gov. Baker's birth certificate proposal raises freedom of information questions"
Dr. Monica Bharel, the Massachusetts Commissioner of Public Health, wrote a letter to the editor of the Boston Globe on February 12, 2020. She stated, "Missing in the Globe’s editorial was that the state’s Public Health Council will develop regulations that specify the levels of access to vital records for the general public, including genealogists, historians, and journalists. These regulations will undergo a robust public process prior to implementation."
MGC President Barbara Mathews wrote our response to Dr. Bharel's letter. The Letter to the Editor was published in the Boston Globe on February 18, 2020, as "State officials can't obscure fact that their bid would hinder access to public records."
In her Feb. 12 letter to the editor (“With digital data, state must consider how to protect people’s personal information”), Dr. Monica Bharel, the state’s commissioner of public health, wrote, “Missing in the Globe’s editorial was that the state’s Public Health Council will develop regulations that specify the levels of access to vital records for the general public, including genealogists, historians, and journalists. These regulations will undergo a robust public process prior to implementation.”
That all sounds great until you realize that the regulations cannot undo the law. If the law says no one can access a marriage record for 90 years, regulations cannot legally say anything else.
As for the promise of a “robust public process prior to implementation,” actually, that is what we do in testimony at legislative hearings involving upcoming legislation. We have a public process, a robust discussion that includes all the stakeholders, before the Legislature determines whether a bill ever becomes law.
I want to make sure that Globe readers are not misled by Bharel’s generous statement of inclusion. The law determines the boundaries of access. Regulations are written later, and they cannot change the law.
Massachusetts Genealogical Council
Susan Spencer, reporter for the Worcester Telegram and Gazette, on February 15, 2020, published "Concerns raised about gov's proposed limits on access to vital documents." She interviewed many town and city clerks who were perplexed about the closure periods contemplated. Ryan Woods of American Ancestors/NEHGS represented the genealogists' point-of-view. This article has also been published on MetroWest Daily and Wicked Local, thus covering many communities.
Paul Leighton, a staff writer for the Salem News, on February 18, 2020 published "Closing the book: Vital records plan leaves volunteer in limbo." His interview with Dan Driscoll, a volunteer at Beverly City Hall, shows how much good open records have done over the years. Driscoll is just as puzzled about records closure as the town clerks were in the article by Susan Spencer.
Dr. Monica Bharel wrote a letter to the editor of the Worcester Telegram and Gazette that was published on February 23, 2020, "Proposal ensures vital records protected and available." In her letter she alludes to the fact that scanning is now taking place and that this is a gamechanger. Genealogists know scanning has been going on for years -- newness might just be an excuse for suddenly hiding records closure in the budget bill.
MGC president Barbara Mathews submitted a letter to the editor of the Telegram and Gazette, published March 12, 2020 as "Letter: Vital records on internet protect us against identity theft."
The letter from Dr. Monica Bharel, "Proposal ensures vital records protected and available" (Feb. 23), tells us that the world is scary because few people know that vital records are open to public inspection. She goes on to say that we have to protect ourselves from an even scarier world when those records are scanned. Her argument offers no hard facts. I'd like to bring this discussion back to facts rather than scare tactics.
1) Almost all vital records are scanned already. It's not a new thing.
2) Public Health sells these records to the National Association of Public Health Statistics and Information Systems (NAPHSIS) which then makes all of that information available to users in national and state governments throughout the US through their product EVVE.
3) That data is sold to the Social Security Administration.
4) It's available to all residents of Massachusetts as a free data set on Ancestry.com.
5) The Registry of Motor Vehicles sells birth information to data aggregators.
The Federal Trade Commission data shows that states with open records have slightly less consumer identity theft than those with draconian closure periods.
Dr. Bharel wishes to scare us about records that have been open for 380 years by implying that having their indexes available on the internet is a game-changer. It's not. They are all there already and they protect us against identity theft.
Let's keep this discussion in the real world and not the scary imaginary world.
Barbara Mathews, President
Massachusetts Genealogical Council
In the Metro section of the Boston Sunday Globe there is a column debating hot issues called "The Argument." The April 12, 2020 issue, p. B10, asked the question "Should access to vital records be sharply restricted in Massachusetts?" Bruce Cohen, a retired epidemiologist for the Massachusetts Department of Public Health, took the Yes side. Barbara Mathews, MGC president, took the No side. Mr. Cohen repeated arguments that we had heard before, including the department's desire to protect consumers (records closure doesn't succeed in doing that) and the very tired statement that magically the DPH could create regulations that would provide the access we want (they couldn't, it would be illegal if the law passed). MGC's response looked at the fact that for 380 years the state legislature and judiciary have recognized the public good provided by open records.
Since 1641 Massachusetts town clerks have recorded births, marriages, and deaths. Those records have always been open to the public. They have critical importance. It is through them that we know how many children will start kindergarten this year; who is old enough to vote, to be drafted into war, to drive a car, or to marry. We know who has died and thus is no longer eligible for financial credit. The public good of open records has been proven over the centuries.
A high standard should thus apply to any effort to close those records. Governor Baker’s fiscal 2021 budget bill includes draconian measures to close records. Vital records would essentially be closed to the public except for people requesting their own.
No effective hard facts were offered to support the need to close vital records. It doesn’t protect the public; one analysis found that consumer ID theft in open records states is the same as in closed records states. Some claim the new availability of scanned images creates a risk, but Massachusetts vital records have been routinely scanned for nearly a decade with no apparent problems.
The Massachusetts Department of Public Health several years ago refused a request by the Boston Globe for an electronic version of 30 years of state birth records. That closure effort was repulsed when the Supreme Judicial Court returned the case to a lower court, ordering that agencies err more on the side of open records.
This effort in the budget might be an attempt to close open records through legislative action when judicial action takes an opposite stance.
The Legislature enacted two successful vital records bills over the last few decades: one about 35 years ago submitted on behalf of my organization, the Massachusetts Genealogical Council, and a more recent bill submitted on behalf of the Town and Municipal Clerks associations. Neither submitted bill sought any records closure; both passed. Most legislative sessions see at least one bill to close vital records. None have passed.
The record is clear. The judicial and legislative branches of state government recognize that open records are a public good. The executive branch should as well.
Barbara J. Mathews
Lexington resident, President, Massachusetts Genealogical Council
As told to Globe correspondent John Laidler.
INTERNET PRIVACY BILLS
Sam Dean, a staff writer for the Los Angeles Times, wrote on January 1, 2020, "It’s 2020 and you have new privacy rights online. But you might have to show ID."