Report!!

The Massachusetts Genealogical Council, a leader in the fight for open access to the records that we as genealogists rely on day in and day out, is asking genealogists across the country to report any case in which a request for access to records has been turned down solely because the person making the request isn’t a state resident.

It made the request in its blog yesterday, and pointed to specific language in various state Freedom of Information Acts that specifically say that access to public records must be given to “any citizen of the State” of Delaware¹ or “any citizens of the Commonwealth” of Virginia² or “any citizen of this state” of Tennessee.³

Whether any state is limiting access to its records to its own citizens is a good question. And anybody who’s ever encountered that problem should report it right away.

But I gotta ‘fess up here: when The Legal Genealogist read those statutes yesterday, my first thought that this isn’t anything to really worry about. I mean, hey, maybe there’s no sure thing except death and taxes, but there is such a thing as the United States Constitution and it has a provision known as the Privileges and Immunities Clause. It’s in Article IV, § 2, and it reads: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

As far back as 1868, the U.S. Supreme Court explained that “it was the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.”⁴ And in 1948, the Court said the clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.”⁵

So hey, I figured, no problem here. If any state tries to limit records access, it’d run afoul of the Privileges and Immunities Clause for sure, right?

Um… that’s a big fat “maybe” at best.

The problem in part is that there aren’t very many cases where the courts have ever had to deal with this and the two key cases that have been decided recently go in somewhat different directions. In 2006, the United States Court of Appeals for the Third Circuit affirmed a district court decision striking down the Delaware law in the context of a non-resident journalist and activist who sought access to records involving the settlement of a lawsuit. The Court held that the law did violate the Privileges and Immunities Clause because refusing access interfered with the plaintiff’s right to engage in the political process.⁶

More recently, a Rhode Island man filed suit when Virginia wouldn’t give him records that affected payment of child support for his son and a California man filed suit when Virginia wouldn’t give him real estate tax assessment records. The combined case was decided by the U.S. Court of Appeals for the Fourth Circuit in February of this year, and although the Court never disagreed with the holding by the Third Circuit that engaging in the political process is a fundamental right, it said simply wanting to access records for your own economic benefit wasn’t the kind of fundamental right that the Clause protected.⁷

Even to the extent that we can read these cases favorably, those aspects of the rule of decision that support access create a pretty narrow rule, and it’s hard to see how we as genealogists could shoehorn ourselves into “engaging in the political process” with the records we want.

Now keep in mind that this isn’t a problem in every state. Most states in their Freedom of Information Acts provide access to any person, not just any citizen.⁸

And keep in mind that access to public records isn’t usually the same thing as access to vital records, like births, marriages and deaths. In Delaware, for example, the regulations of the Delaware Division of Public Health expressly state that “Family members doing genealogical research and genealogists representing a family member may obtain copies of records needed for their research.”⁹ No residency requirement there.

Similarly, the Tennessee Department of Health advises that:

The Tennessee Vital Records Office keeps birth records for 100 years and death, marriage, and divorce records for 50 years; after that time, the records are sent to the Tennessee State Library and Archives for public access and family research.

Tennessee State law dictates that certified copies of our records can only be provided to the person named on the certificate or certain family members. However, verification of information from our records (excluding cause of death) can be provided to any requester.”¹⁰

No residency requirement there either.

Virginia vital statistics regulations also contain no residence limitations,¹¹ and I know from personal experience that you don’t have to show an in-state driver’s license to use the microfilmed historical vital records at the Library of Virginia.

So these statutes and their citizens-only rules aren’t terribly likely to impact access to vital records. Note the limitation here: I can only say it isn’t likely; I can’t say it’s impossible.

Moreover, as researchers we don’t just want vital records. There are public records that we’d like to see to add color and depth to our family histories. And that can be problematic for sure under these statutes. For example, the Tennessee Attorney General has taken the position that the citizens-only rule in that State doesn’t violate the Privileges and Immunities Clause, and that while public agencies can provide public access, they don’t have to.¹² And many don’t.

Any limitation on records access is worrisome. So we’re all going to need to keep an eye out, and report any problems we find. What we don’t know about, we as a community can’t try to fix.

So report!

 
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