Our thirteenth newsletter:
New lawsuit filed for the Missouri
birth index and death index!
💰 CYBER MONDAY SALE: 💰
SAVE 100% ON MISSOURI GENEALOGY RECORDS!
Well, not yet. But it'll be 100% off the cost of the Missouri birth index and death index forever, if we win the lawsuit we filed last Wednesday!
Hello again from Reclaim The Records, your friendly neighborhood records access activists. We're here to tell you about our latest genealogical fight, to get the first-ever copies of the Missouri birth index 1910-2015 and the Missouri death index 1965-2015 released to the public. If you've watched the video of our one-hour lecture at the IAJGS conference from this past August, you may have heard some of this story before, but this is the first time we're telling the whole tale in one of our newsletters.
Here's the short version of the story:
We formally asked Missouri for copies of their basic statewide birth index and death index, both of which would of course be really useful to genealogists and historians. Getting copies of these databases would probably would cost the Missouri Department of Health and Senior Services about $500 and a few hours' time to dump onto a USB stick for us. As usual, we would then post that data online for free public use, no copyrights or restrictions or paywalls.
We submitted those requests back in February. After ignoring us for a few months, far beyond the legal requirements of the Missouri Sunshine Law (which mandates a yes-or-no answer to a request within three days of receipt), the Department eventually conceded that yes, we had the legal right to the indices. But they had the gall to tell us it would cost $1.5 million dollars and would take 20 years, 6 months and 4 days to give us the data.
Um...no. Time to call in a lawyer.
So we hired one, a good one. And we called the Department out on their "mistake", confronted them with obvious proof from their own website and their own software vendor, showing that they were attempting to wildly overcharge us. At that point, they admitted that oooopsie!, it might really cost something like $5,000, not $1.5 million, to get this data. And then they even admitted it might cost even less than that, maybe a few hundred dollars at the most, just like we had originally thought.
But then just as we were about to get the final invoice and pay them, they suddenly decided they now had the right to withhold the databases entirely, to be exempt from the Missouri Sunshine Law. The Department totally ignored a letter from our attorney explaining to them why this was not true, legal citations and all.
And then they just stopped responding to our attorney, too.
So we sued them last Wednesday, the day before Thanksgiving, in the Circuit Court of Cole County, Missouri.
Here's the longer version of the story:
Missouri does not have a basic genealogical birth index available to the public for any year after 1910. They do at least have a genealogical death index available, but only with a fifty-year lag time (i.e. pre-1966), nothing more recent. This can make doing genealogical research in the state difficult, because you don't even know what records potentially exist in order to place an order for them. If you want to research a "John Brown", you can't even get a basic listing of how many John Brown's there are, or were -- even if you're willing to pay them for that data!
But in early 2016, Reclaim The Records discovered that Missouri's state Vital Statistics law actually may allow for the publication of basic birth and death index data, even though they have not done so in the past. Yes, the actual certificates may have strict privacy restrictions, but the very basic index seemed legally okay to release to the public. So in February 2016, we filed a public records request under the Missouri Sunshine Law to get copies.
This is the actual text of the birth index request we filed:
Subject: Missouri Sunshine Law Request: Request for the Missouri birth index, 1910-2015
To Whom It May Concern:
Pursuant to the Missouri Sunshine Law and the Missouri Public Records Law, I am making a public records request.
Missouri's statute concerning Vital Statistics states in Section 193.245.1:
“It shall be unlawful for any person to permit inspection of, or to disclose information contained in, vital records or to copy or issue a copy of all or part of any such record except as authorized by this law and by regulation or by order of a court of competent jurisdiction or in the following situations:
(1) A listing of persons who are born or who die on a particular date may be disclosed upon request, but no information from the record other than the name and the date of such birth or death shall be disclosed;”
(Online reference: http://www.moga.mo.gov/mostatutes/stathtml/19300002451.html)
Based on that statute, I would like to order such a listing, covering all persons born in the state of Missouri between January 1, 1910 and December 31, 2015, inclusive. Please note that this is a request for just the basic index to the births, and is not a request for any actual birth certificates. If it is possible, I ask that the Department of Health and Senior Services also include each person's sex and birth certificate number as part of the data in the index.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.
(We also made an almost identical request for the Missouri death index.)
Despite a three-day reply deadline under the Missouri Sunshine Law, the Missouri Department of Health and Senior Services didn't actually follow up with us about this records request until late April 2016. They eventually confirmed to us that our request was lawful, and that we could receive the records we sought. They also confirmed that this index existed in database format.
And everything seemed fine for the birth index request. But it turns out that their Department only kept death index data for 1965-2015, as the earlier (pre-1965) data was already public through the Missouri Secretary of State’s office, so we would have to amend our records request to start in 1965 rather than 1910. We agreed to do so.
They also said we could not add the two extra columns of basic data we wanted, for the person's sex and the certificate number. All we would get was the surname, the given name, and the date of birth or death. But that was still better than nothing, which is what we've got right now, so we said okay.
However, we then ran into two problems with the agency:
- A problem of format
The Missouri Department of Health and Senior Services told us that even though the records we sought do exist in native database format, they wanted to provide the records to us in their “usual” format, which meant having one of their staff members request certain days of data from the database, print out the results onto paper, and then scan the paper into a compiled PDF format.
Besides being a ridiculous waste of the agency's time, money, and paper, this is also a clear violation of the Missouri Sunshine Law, which states that if records are already available in certain format (paper, microfilm, database, etc.), an agency must make copies of the records available in that same format.
- A problem of calculating the actual costs
The Department has apparently been using this birth and death data for years as a revenue source, charging researchers and scientists for access to birth and death index data by the day, rather than making all of the records open data. Therefore, the Department wanted to charge us not for the couple of hours of work required to do a one-time database dump to a USB drive, but rather charge us for each day of content we were requesting.
Since we were asking for all Missouri birth index records from January 1, 1910 through December 31, 2015, they pretended that it would cost us $976,649.28 (23,376 hours at $41.78/hour). In case you were wondering, 23,376 hours is more than two and a half years of work, if you work 24 hours a day and 7 days a week -- or more than 20 years if you go by the official workweek and overtime schedules for Missouri public employees. (Our attorney actually did the math on this one.)
And for the death index, since we were asking for fewer years, January 1, 1965 through December 31, 2015, they pretended that it would cost us $488,324.64 (11,688 hours at $41.78/hour).
Besides being absurd, this is also a clear violation of the Missouri Sunshine Law, which has found that an agency cannot charge by the record. See R.L. Polk & Co. v. Missouri Department of Revenue, 309 S.W.3d 881 (Mo. App. W.D. 2010).
At this point, in late June 2016, we sighed heavily and finally retained legal counsel, Bernie Rhodes of Lathrop & Gage, and we started conducting all of our communications with the Department through him. He talked to their General Counsel on the phone, who claimed to him that the Department's IT staff simply could not do a single database dump as we asked, and would have to search each individual day's worth of records, one by one. This, she said, was because they had a very old mainframe that ran “SAS” which could not handle a date range query. Very sorry, but just not possible.
We were dubious.
Reclaim The Records then, on our own, called up SAS' tech support phone number and confirmed with their engineers that this was actually an extremely easy database query to do, which is just what we had suspected. We contacted the Department and let them know this. Additionally, our attorney pointed out to them that there were several reports and graphs on the Department's own website that had clearly been created with this exact same type of simple date range query.
When confronted with this evidence, the Department's General Counsel sent a new e-mail to our attorney on August 1, 2016. In it, she admitted the cost for the birth and death records queries would actually be something like $5,000 — a huge discount on their previous $1.5 million estimated pricetag for the records!
But even that wasn't fully accurate. To get to that $5k figure, the Department was still estimating the cost based on one search per year, rather than one single search to encompass multiple years of data. The General Counsel wrote that she would be seeking a clarification to reduce the estimate, if possible.
But then all of a sudden, on August 9, 2016, the Department sent out a new letter and, for the first time, declared that they would not produce the records and would not comply with the Missouri Sunshine Law at all. They claimed that providing the information would be too invasive, and claimed to have the ability to withhold records at their discretion. Here is a copy of her letter (PDF).
It seemed extremely convenient for them that they would suddenly discover a legal problem a few days before giving us the actual cost of the records, for which they knew we would pay, since it was no longer $1.5 million.
We wrote back a rather strongly worded response to that. We explained that this was not a legally defensible position for the Department to take. We cited caselaw. And you can read that letter here (PDF).
And they ignored it and never responded to that letter, or to us, again.
So, on Wednesday, November 23, 2016, the day before Thanksgiving, we filed our Missouri Sunshine Law suit in the Circuit Court of Cole County, Missouri. We are asking for the records, at the actual cost of producing them, meaning with a single date range query, plus the cost of the USB stick. If they really need to bring in specialized IT contractor for a few hours to make all that happen, we would cover his costs, too. We still think the actual costs of this records request would be a few hundred dollars at most, which we are willing to pay. But $1.5 million for a public records request? OH COME ON.
But that's not all. Missouri's Sunshine Law allows for people who are making records requests to seek and receive reimbursement of their legal fees, if an agency wrongly withholds records, or denies providing them in an available format, or wrongly calculates the copying fees. So we're asking for our attorneys fees.
And Missouri is also one of the rare states whose open records law allows for the possibility of fines if they purposely withhold records from the public, up to $5,000 per request. So we're asking for fines too.
You can follow the progress of this case in realtime through Missouri Case.net, which is the Missouri court system tracking website, or by watching the MuckRock page. And we'll keep you updated as to what happens next, through this newsletter, and our social media accounts. But there may not be any official updates until early next year, 2017. These things take time.
Happy belated Thanksgiving to all, even the government turkeys who try to keep the public from our records! 🦃