Our twenty-third newsletter:
Reclaim The Records sues the New York State Department of Health, asking for information about possible preferential treatment in public records access for Ancestry.com
"The only stable state is the one in which all men are equal before the law."
Hello again from Reclaim The Records, everyone's favorite little non-profit group of genealogists and historians fighting for public access to government records. Fresh off the heels of our recent legal win against New York City, we're announcing today that we've just filed our fifth Freedom of Information lawsuit! But this one's a little different from the previous four.
Rather than going after a naughty state or local government agency or archive for withholding copies of genealogical records, this time we're suing to gain some transparency about how agencies choose to grant or withhold access to those records from the public -- and whether or not they show improper and potentially illegal favoritism to large corporations over individual citizens or non-profit organizations.
No government agency should get to sell public records access to the highest bidder, favoring big companies and putting up roadblocks to the little guy. And no government agency should then get to hide all its communications and contracts with that same company when a follow-on Freedom of Information request arrives.
Part I: Let's review the backstory
As you might remember, back in May 2017, Reclaim The Records finally won the first-ever public online access to the New York State death index for 1880-1956. We spent seventeen months working on that project and we're thrilled that the records are all finally online at the Internet Archive, free to browse or download, unencumbered by copyrights or paywalls. Previously, these years of the state death index had only been available in a handful of small public libraries within the state, and only in old-fashioned and often-faded microfiche format.
But a funny thing happened during that seventeen-month-long fight. The New York State Department of Health made us jump through hoop after hoop to get to these public records. They tried to block us with everything from an inflated initial $152,000 cost estimate (!), to an illegal ten-day "exploding offer" with a 50% downpayment, to requiring that a state archivist sign-off on the quality of the deteriorating microfiche sheets in the state vault, to demanding that we hand over the product manual for the high-tech microfiche scanner we proposed to use to do the scanning, to limiting the hours and days we could potentially use that scanner, and even then only with supervision from state employees, and more.
It was quite a list of demands. And you should go read that whole crazy story in order to understand our current lawsuit.
No, really, go read that backstory and then come back and read the rest of this newsletter.
Something about that whole story just didn't sit right with us. That's because Reclaim The Records currently has not one but two pending FOIL requests with the same state agency asking for two very similar types of records: the New York State marriage index, and the New York State birth index. They too were only available on microfiche. And our requests for these files were (and are) dragging on and on with the same state agency.
It was almost like...like the New York State government couldn't give us a copy of the public records because someone else was busy having access to them first. Even though we requested them almost a year ago.
And that's illegal under the New York State Freedom of Information law, section 87(5)(b): "No agency shall enter into or renew a contract for the creation or maintenance of records if such contract impairs the right of the public to inspect or copy the agency's records."
Part II: What the heck is going on?
And so in October 2017, Reclaim The Records filed a new Freedom of Information request, again with the New York State Department of Health. You can read that request here, because we publish our work out in the open on the MuckRock website. See, unlike the government we kinda like transparency.
We wanted to know how it came to be that our records request (actually two separate requests) took seventeen months to be fulfilled by the government for the public, and yet the 800-pound-gorilla genealogy company Ancestry managed to gain access to the exact same files in only three months, with apparently none of the financial or logistical roadblocks our organization had faced.
In this October 2017 FOIL request, we asked the state for "copies of all correspondence, e-mails, proposals, drafts, notes, agreements, contracts, meetings and calendar entries, phone logs, meeting minutes, budget items, receipts, vendorization forms or data, bids, evaluation materials, Freedom of Information Law (FOIL) records requests and their associated correspondence and any appeals, and any other documentation or communications between the New York State Department of Health and Ancestry.com, or such materials within the New York State Department of Health about Ancestry.com."
(Yes, we kind of threw the kitchen sink in there with so many synonyms for "give us all your files" but hey, we were trying to be thorough.)
Part III: The state gets defensive
And weirdly enough, the state refused to hand over almost anything in response to this October 2017 request. They refused to turn over any of the financial data at all, but did not give a reason why. But they did turn over a tiny number of e-mails and FOIL requests that Ancestry had filed, over a year after we had filed our own requests.
And that was when we noticed that employees of Ancestry had taken our original records request from January 2016 and cut-and-pasted our own words into their own records request in March 2017, sent it to the state, and had it fulfilled before ours -- and without any documentation that Ancestry had faced anything like the financial or logistical roadblocks the state had demanded of us.
Not cool, Ancestry. Not cool, New York.
It's bad enough having your records request be ignored by the government, but then to have your exact same words be deemed sufficient only when coming from the e-mail address of a large corporation is just adding insult to injury. Still, our parents will be thrilled to know that our undergrad English degree was apparently good for something, now that billion-dollar companies are using our words to negotiate records contracts with state governments.
This meager FOIL response was unsatisfying, and raised a whole slew of new questions. How did Ancestry (apparently) get treated like a state vendor for the digitization of these public records without (apparently) fulfilling state vendor and bidding rules? And why did the NYS DOH Records Access Officer allow a corporation to "jump the line" ahead of two long-pending Freedom of Information requests? And was this still going on with respect to the digitization and delayed public access to the state marriage index and state birth index?
In February 2018, we filed a FOIL appeal with the New York State Department of Health. You can read it here (PDF). We protested that the agency had withheld practically everything we had requested, including e-mails, bids, vendor forms, meetings, proposals, contracts, and more.
By law, a state agency is required to reply to a FOIL appeal in ten business days. But the New York State Department of Health never replied to our appeal, and never even contacted our attorney. Shaaaaady.
So...you all know what comes next, right? Yeah. We sued the state to get the records -- because that's what we do. We filed our paperwork in the Supreme Court of New York, Albany county at the end of last month.
Of course, if you followed us on Twitter you would have known that a week ago, because we often drop big news there first.
Part IV: It's on like Donkey Kong
And here is the text of our twenty-six page lawsuit in PDF format. This version is currently missing the fifteen separate evidence exhibits we included in our filing, but we'll upload those soon. New York State's repeated attempts to stall us in gaining access to the death index sure did create a big paper trail for us to include in our complaint! That was awfully nice of them.
If we win this lawsuit and the records we seek, we will publish all the materials freely online. We'll all have a front-row seat to see how government agencies treat requests for genealogical records, to compare and contrast the difference in their behavior towards big companies versus small genealogists.
We're also asking for attorneys fees, as usual. And because the state didn't even bother to reply to our FOIL appeal, that seems like something we may well win, given their refusal to follow the law.
Finally, we're also starting to talk to the press about this case, although both the state and Ancestry are so far refusing to make a public comment about it. This is the first news story we've seen online about this case, but more are coming: "Sweetheart Ancestry.com Deal Alleged in NY". Yup, that's how Courthouse News chose to headline this story when they read the legal complaint.
In the meantime, stay tuned to our Facebook page and Twitter feed for the latest news as this case winds its way through the court.
Part V: Help us hold the government accountable to the public for fair and equal access to genealogical records
If you like our work and our activism, we hope you'll consider making a donation to Reclaim The Records to say 'thanks' and to help us fund more of this kind of legal work. We became a 501(c)(3) non-profit organization last year, and public support for our projects is crucial to our continued work.
And we're happy to announce that a generous anonymous donor has recently stepped forward to offer our first-ever matching gift! Our donor will match the first five thousand dollars that Reclaim The Records raises by October 15, 2018. That means that your donations can be doubled, and this new funding can go towards more litigation, more open records advocacy, and more activism.
(Important note: in our last newsletter, we worded this description poorly and accidentally implied that our donor would match every five thousand dollars we would raise between now and the end of the year. That's not the case, and we regret the error.)
Please help us take advantage of this generous matching offer, and donate today. Your support is very much appreciated!
🇺🇸And Happy Fourth of July! Did you know that today is not just the birthday of our country, but also the 52nd birthday of Freedom of Information Act? 🇺🇸