PUTTING THE BIG APPLE’S BIG RECORDS ONLINE FOR EVERYONE

Faced with an unbelievably ridiculous attack on public records access in New York City, we’re taking matters into our own hands: we want to get the contents of the New York City Municipal Archives and put all the records online ourselves — FREE, FOREVER

Genealogists have just about had it with New York. Even for the kinds of quiet, conflict-averse nerds who actually enjoy digging through probate files, who have become inured to dealing with some of the most restrictive rules on historical public records access in the whole country, it seems like this month, October 2020, was when it all finally boiled over. Nights of emergency Zoom meetings, days of public comments — the New York genealogist, historian, and researcher community is beyond mad right now. And they have every right to be.

And we at Reclaim The Records want to tell you that story, and how we are starting to fight back against this government greed gone amuck.

Earlier this month, the New York City Municipal Archives did something unusually dumb. They announced a revision to their rules that would require all Archives researchers and patrons to request and obtain the Archives staff’s “permission” in order to use or re-use any images or historical records that they hold, even if those public records are very old or are entirely in the public domain. The Archives didn’t specify how or why this “permission” would or would not be granted, nor how to appeal if it were somehow not granted. Furthermore, the Archives says that researchers must then pay the Archives a blanket “licensing” fee for the use or re-use of those public records it holds, far above any actual copying costs, even for educational, scholarly, or non-profit use.

In other words, this taxpayer-funded public archive wants to limit your right to use, re-use, or re-publish every historical public document that you might ever want to obtain from them, in your articles or presentations or books or movies. If you’re a professional genealogist, they want to limit how you may legally re-transmit those records that you already bought to your client, or to a court if you’re working on a legal proceeding, or to a foreign government’s consulate if you’re working on a dual citizenship project. They even want to take ownership of any new scans or photographs that you might have made of those public records. They even have the nerve to ask you hand over copies of your new photo negatives to them, and then assign the rights to those negatives to the City of New York! And then as the cherry on top of the sundae, they want to you pay them extra for the right to do all this, too.

Don’t believe us? Well, check them out for yourself.

And the really crazy thing is that these revised rules aren’t even that much better or worse that the absolutely bonkers “contract” the Archives already hands out to people who want to use Archives materials! Go, read those conditions and bullet points slowly, but ideally not while you’re drinking a beverage.

That “contract” comes straight from an official New York City Municipal Archives e-mail account. We got tipped off to this scam of theirs about a year ago, when we heard through the genealogy grapevine that a researcher from Australia had reached out to the Archives over e-mail, asking them (although he legally had no real need to ask) if he could please make a scan of a 1906 NYC birth certificate for a minor celebrity and then add that new image to that person’s page on Wikipedia. The Archives actually told him he’d have to pay them if he scanned and posted the more than century-old public record he already had. And not that it should even matter for a non-copyrighted and very old totally public record, but Wikipedia is also, of course, a famously free non-profit website, not a commercial use.

We later found out that this wasn’t an accident or a one-off mistake. It was a policy, a dumb one. And the Archives’ attempts to revise that policy this month are now just making it more obvious to everyone that something is very wrong here. We know of no other public government archive, neither city nor state, in the entire United States that would dare have the chutzpah to attempt something so brazen. Only in New York!

Just to be really clear, almost all of these historical records held in the New York City Municipal Archives are government-created records, are in the public domain, were never copyrighted, and are likely legally unable to be copyrighted. They’re usually records that came directly from other government agencies, including even federal government agencies, some of which are long-defunct. Some of the records are fifty or a hundred or several hundred years old. Some of the records even predate the founding of the United States itself! They’re public records of our shared history, paid for by our taxes and our ancestors’ taxes. No one owns them, and no one ever will — or alternately, one could say that we all own them.

But the New York City Municipal Archives has apparently decided that nah, they control all those records, forever.

That’s just nuts

It sure is! And researchers and genealogists, especially those who do a lot of work involving old New York City records, are understandably outraged. In the Archives’ official public meeting about this rule change, held via videoconference on October 23rd, and through the City’s official Rules web portal, many people have given their testimony and made their very eloquent complaints known to the City. For example:

• The New York Genealogical and Biographical Society (the NYG&B) created an excellent explanatory webpage about the “licensing” issue on their website, and you can also read their president Josh Taylor’s official public comment about the matter.
• The International Association of Jewish Genealogical Societies (IAJGS) also wrote a very good letter in opposition to the rule, well worth reading for its specific details.
• Even the nice people at FamilySearch, who are famously polite, submitted their own official letter of protest to the City over the situation. The best line in it: “You cannot license public records any more than you can license the use of the alphabet.”
• And last but certainly not least, our own Reclaim the Records board member Alec Ferretti went so far as to compose and recite a series of limericks (!) for his official testimony at the public meeting. It was well-received by everyone who didn’t work for the City.

As far as we can tell, not one person who spoke at the public meeting, and not one person or organization who has submitted a public comment online, has been in favor of the new Archives policy — except for the Archivist.

What the heck does the Archives think it’s doing?

So far, the Archives has tried to handwave away all this criticism and uproar. They claim that these new “permissions” and “licensing” fees are like, totes normal, you guys, why you all so salty? They have instead attempted to raise two terrible defenses.

Their first claim, which the Archives has now said repeatedly, both verbally (including at that official public hearing) and in e-mail correspondence, is that none of these permission and licensing requirements were ever meant to apply to records being used for personal family history. However, that’s literally not what their own rules, which they authored, say. Now, that may be how they currently choose to interpret their own rules, but that doesn’t mean they can’t change that interpretation at any time in the future, and then yank the rug out from under everyone. If this is a public comment period on new rules, should they not heed the public’s overwhelming request for clarity in the actual wording of their own agency rules?

The Archives also claims that they have never charged for the use of “family history” records in the past, which as you can see from that guy-in-Australia-with-a-1906-birth-certificate-copy-on-Wikipedia e-mail chain we posted before, is clearly untrue. And in any case, they also seem to include only actual vital records (births, marriages, deaths) as the sole category in their imaginary “family history” rules carve-out. But what about all the researchers who use other historical public records also held at the Archives, like old tax records or the 1890 New York City “Police Census” or the Almshouse records, in their family research? Why should they need to ask special permission, or pay a dime for use beyond a reasonable one-time copying fee?

Secondly, at the public meeting, the Archives specifically cited the example of the nearby New York Public Library as a place that has similar licensing agreements and contracts required for the public use of their holdings, the implication being that requiring these permissions and then charging high fees for records access is just a normal and established precedent, and archives do it all the time, no big deal.

Of course, there’s just one little problem with that: the New York Public Library kind of isn’t a real public library, despite its name. They’re actually a private non-governmental non-profit corporation, originally created by the well-heeled Astor, Lenox, and Tilden families, which acts in partnership with the City of New York. More importantly, the NYPL’s holdings are explicitly not subject to the New York State Freedom of Information Law (FOIL).

The New York City Municipal Archives, though, is a real public agency, part of the New York City Department of Records and Information Services (DORIS), and its holdings most certainly are subject to FOIL. Heck, we dragged them to court twice in the past six years to prove that exact point to them! And FOIL clearly caps the allowed fees for the duplication of government-held public records, limited to the actual costs of duplication. And of course, the whole reason FOIL exists in the first place is to make it clear that the American people are allowed, with limited and enumerated exceptions, to view and copy government documents, without needing to first justify their intended use case to the government agency. That’s why it’s called the Freedom of Information Law, not the Freedom of Information Suggested Policy If We Feel Like It Today And If We Approve Of How You Will Use The Documents Now Pay Us An Extra Hundred Dollars And Give Us Your Photo Negatives Too.

In short, everything the Archives is doing and claiming here is all legally-unsupported malarkey. But so far, the Archives seems stubbornly unwilling to back down from their position and fix their rules, despite the public outcry. This stinks, this really stinks. What can we do?

The Genealogists Strike Back

Well, we at Reclaim The Records are fighting back in a big, big way. And we’re purposely choosing to do it in a way that will be impossible for the Archives to ever undo, no matter what kinds of new contracts they may draft in the future, or what kinds of new permission slips they say researchers are required to submit, or what new fees they want to impose on public access to public documents.

Last night, October 29th, we at Reclaim The Records formally launched the first of what will be many Freedom of Information requests (and probably many resulting lawsuits) asking for copies of the Archives’ files. And we mean we are going after alllllll the files at the Archives, image by image, file by file, records set by records set. We are no longer willing to leave these important historical documents solely in the hands of agencies who have shown, through their repeated bad actions, that they only want to control and profit from exclusive access to our shared history. We don’t trust them, and we want our public records back safely, and freely, in the hands of the public.

We are starting off this fight with a big new FOIL request for every single record that the New York City Municipal Archives has ever already digitized or scanned, regardless of whether or not those files were ever previously published online. Digital records are subject to FOIL, just as physical records are. So we are asking for full, unredacted, unwatermarked, full-size, high definition versions of everything they already have, and also all the text metadata and databases that go with them, delivered to us on hard drives. We’ll pay for the drives, of course, and for the shipping; that’s only fair. But since the files are already digital, and can be easily copied, that’s about it. No permissions, no licenses, just pay what the law requires and no more.

What does this mean? Well, for the majority of casual genealogists, this is the main thing:

Reclaim The Records is going to get every single digitized New York City birth certificate, marriage certificate, marriage license, and death certificate that the Archives currently has in its possession, and we are going to put them all online for free public use, without any restrictions, costs, paywalls, subscriptions, or copyrights.

This will mean that all of the genealogy websites you know and love, both commercial and non-profit, large and small, as well as individual researchers or teachers or journalists or anybody, will finally have access to download and re-upload and re-publish every single historical New York City vital record, for free. Millions and millions of them! And unlike the Archives, we won’t have any dumb “Mother, May I?” permission slips or shady licensing fees to line our pockets. It’s all gonna be free, forever.

Here is the text of the three-page New York State Freedom of Information Law (FOIL) request that we at Reclaim The Records submitted to the Archives last night. (Internally, we nicknamed this one the “Release the Kraken!” FOIL, for obvious reasons.)

The best part of all? In the past few years, the Archives has undertaken a multi-million dollar digitization project for the old NYC vital records, to finally scan them all in high definition and in color. If you were a patron sitting onsite in the Archives building in lower Manhattan — and alas, no one is right now, due to the pandemic — you could freely pull up these gorgeous new color scans on the Archives’ own computer system, or by connecting your personal laptop to their public WiFi. That means the new scans are public records, too.

But they’ve never gone online anywhere openly before, at least not these nice new versions. About forty years ago, FamilySearch did sign a contract with the Archives to get the right to make microfilm copies of the old black-and-white microfilms of these New York City birth, marriage, and death certificates. But then a few years ago, the Archives suddenly threw a big ole hissy fit, and refused to “let” FamilySearch continue to display their own images of their own legally-scanned microfilms on their own website. This restriction has had the effect of forcing researchers around the world to have to physically trek down to a limited number of Family History Centers during limited operating hours (or no operating hours at all, during the pandemic) to use their computers or their WiFi networks, just to see the old black-and-white images of New York City vital records — which, again, are public documents.

Furthermore, the Archives has very recently taken possession of decades of a different type of vital record, the three-page New York City Clerk’s Office marriage licenses, which are a totally different record set than the two-page Health Department marriage certificates. We at Reclaim The Records are actually indirectly responsible for that record set being de-accessioned to the Archives in the first place (you’re welcome!), because we won two separate lawsuits against the New York City Clerk’s Office in 2016 and in 2018 for the index to those marriage licenses. This spurred the City Clerk’s Office to finally hand over some of their older materials to the Archives. Those three-page marriage licenses were never available from anyone before, not even on the old FamilySearch microfilm reels, but they too have now been scanned in color over the past few years, although the work on this set is not completely done yet.

And all these vital records, the lovely new color high-definition versions, are going to go online for free just as soon as we get them. Forever.

Of course, you’ll still have to go through the Archives directly if you want to get a certified paper copy of a vital record, as the records we’re seeking will just be considered uncertified “informational” digital images. That’s fine, though, because for most people, especially genealogists, we don’t actually want or need legally-certified documents just to look up a relative’s name or find out the name of a cemetery where a great-great-uncle was buried.

But first, before we get too far ahead of ourselves, we have to go fight and win this new FOIL request, and the “Article 78” petition (lawsuit) it will probably spawn. But we’ve done that successfully with city agencies before, several times, including twice against this particular agency! So we’re not very worried about it.

If all goes well, we’re probably looking at winning the lawsuit and receiving the digital files by late 2021 or early 2022. It’s something to look forward to, in a coming year that we all hope will be better than this year.

We have not yet begun to fight

And this is just the beginning. We’re not just going after all of the Archives’ already-digitized image files and their associated text metadata. That’s because, of course, so very many of the wonderful holdings of the Archives were never scanned or photographed or transcribed in the first place.

Lots of these Archives records only exist on old microfilm reels. And so we at Reclaim the Records will also be making multiple new FOIL requests over the coming years (yes, years!) for some crucial microfilms that have never before been available outside of New York City. We’re looking at record sets like the “delayed and special birth certificates” for people who were born in New York City in the late 19th and early 20th centuries, but who did not have (or could not locate) original birth certificates and had to apply at a much later date, often because they needed Social Security or wanted to join the military during World War II.

We’re also looking at various other important record sets, whether they’re large data sets like the index to old NYC District Attorney case files, or even small one-reel or or two-reel series, like the listing of all New York City born and Puerto Rico born US soldiers who died during the Spanish-American War. There are a lot of interesting records in those vaults, and we want to get them all, digitize them, and throw them up online, bit by bit.

Fun fact: two years ago, we actually managed to get the first-ever mostly-complete list of every microfilm reel held at the Archives. We did it through a big separate FOIL request, back in March 2018, which did not require a lawsuit but did necessitate lots of painful back-and-forth e-mails to pull the data out of the Archives after they kept “forgetting” to include information about their own holdings. You can read it all here, if you like. If they were a competent government agency, the Archives would probably have a “here’s a big list of all our microfilm holdings” page somewhere on their own website, and then we could all just look at it — but they aren’t and they don’t, and hence all the tedious bickering.

We at Reclaim The Records are also thinking about what kinds of records are being held in the vaults at the Archives that have never been photographed or scanned or microfilmed, and which would be wonderful to preserve and put online before they crumble into dust. These old records are legally subject to New York FOIL too, although many precautions would need to be taken due to their fragility. For example, existing FOIL Advisory Opinions from the New York State Committee on Open Government indicate that an agency can mandate that no flash be used during the photography, or that only an experienced vendor may handle the old paper, which are certainly reasonable conditions. We’re not filing this kind of “we want paper records!” FOIL request just yet, but we will in the coming years.

(And you guys and all of your historical organizations can all file these kinds of fun records requests, too! Come join the fun! In fact, a little birdie told us that a certain well-known genealogy organization just filed their very first Freedom of Information request, asking for public copies of certain historical files. We’re so proud! But we’ll let them announce the news when they’re ready to go public.)

We also want our money back

We at Reclaim The Records are also busy planning a wholly new type of lawsuit against the Archives, a groundbreaking tactic that our organization has never used before, and one that we think probably no group in America has ever used against any government archive or library before.

See, we don’t want to just get the records back, although we do love records! But we also want to get researchers’ money back, for all the “licenses” they should never have had to pay to the Archives all these years, for all the public records the Archives does not own and has never owned — and will never own. Profiting off selling things you don’t own isn’t just gross, it’s fraud. And it’s especially gross when an official agency of the government does it to the public, and does it knowingly.

And we’ll have much more to say about that fun new project early next year. ?

And speaking of money…

You guessed it, this is the part where we ask you for donations to help support our work. And as you can see, we have a whole lot of work ahead of us, projects that will take years to see through.

But we have a habit of doing just that, and not letting these things drop, and of holding government agencies to account for their actions. Whether it’s suing Missouri and proving that they broke their own law knowingly and purposefully, or even taking on the US National Archives itself, we think big, and we get it done. And your continued support means we can keep hiring our awesome attorneys and planning new ways to go reclaim our records.

From all of us at RTR, thank you for your support! It means a lot.

UPDATE, February 2022:

Roses are red / violets are blue / on Valentine’s Day / we decided to sue.

After waiting almost exactly a year for a yes-or-no response to our FOIL request that never came — even though the law requires that an agency provide such a reply within twenty days — our attorney sent a letter to the Commissioner of DORIS on October 22, 2021, asking to appeal our request, since the lack of reply is equivalent under the law to a denial.

The Commissioner of DORIS wrote back to our attorney on October 26, 2021 saying that they had not in fact denied our request, they just hadn’t bothered to answer it yet, and they would quite soon. (They did not.)

And so on February 14, 2022, Valentine’s Day, we sued the New York City Municipal Archives for the fourth time in eight years, to try to reclaim more public records for the public.

In January of 2019, Reclaim The Records obtained copies of approximately two years of the daily Microsoft Outlook calendars for several New York City employees working at the Department of Records and Information Services (DORIS). These calendars included the lists of all meetings they had taken, whether in person or by conference call or other method, and with whom.

We discovered many interesting things in these calendars, including that the Commissioner of DORIS, Pauline Toole, and several other staffers, had been having multiple meetings with the tech company Google about a previously unpublicized and unknown project. Note that DORIS is the parent agency of the New York City Municipal Archives, one of the biggest and oldest public historical and genealogical record archives in the United States.

One calendar entry referred to a meeting with Google representatives about a “research project.” Another showed a meeting between a staff attorney for DORIS and Google’s own legal department at Google’s New York office, during which they then met via videoconference with Google’s legal department in California. And there were several other mentions of a Google “agreement”. Most interestingly, in October 2017, there was an explicit mention of “Google NDA” in a calendar entry — presumably meaning a Non-Disclosure Agreement of some sort, between a New York City agency and Google, which to our knowledge, had never been disclosed to the public nor reported in the press.

Why were New York City bureaucrats signing a secret deal with Google? What was this “research agreement”? We decided to find out.

In January 2019, less than a week after we received the calendar copies, we submitted a Freedom of Information request through New York City’s OpenRecords portal, directed to DORIS. Although far more than the legally mandated twenty business days have now passed since our request, Reclaim The Records still has not received a formal response nor any records from the city, just several extensions of the projected date by which they promise to tell us more. The most recent date that DORIS has provided for a response to our request is July 25, 2019. We’ll see what turns up.

Here’s the full text of the FOIL request we sent to the city:

FOIL-2019-860-00035

Title:
All DORIS agreements and communications with and/or about the Google “research project”

Description:
To Whom It May Concern:

Acting on behalf of the non-profit organization Reclaim The Records, and pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

I am requesting 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 any members of the New York City Department of Records and Information Services (DORIS) and Google, or within DORIS about Google.

To further aid in your search and records production, this request explicitly includes all materials associated with the mentions of “Google” in the official calendars of DORIS Commissioner Pauline Toole, Assistant Commissioner Ken Cobb, and DORIS attorney Lisa Velasquez, among others at DORIS, particularly those in the records management division and in the legal department. Meetings about a Google “research project” [sic] appear several times on their official calendars, as well as a “Google Agreement” [sic] and a “Google NDA” [sic] — which presumably refers to a non-disclosure agreement between DORIS and Google. (We would like to remind DORIS that NDA’s are not exempt under FOIL.)

We are requesting all of these materials for all dates between January 1, 2015 up through the date that this FOIL request is processed, inclusive.

In the event that there are fees, please inform me of the total charges in advance of fulfilling my request. I would prefer that this request be filled electronically, by e-mail attachment if available or USB hard drive if not. The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

If any clarification is necessary, please feel free to e-mail me at info@reclaimtherecords.org.

Thank you in advance for your anticipated cooperation in this matter. I look forward to your response within five days, as required by the law.

Sincerely,

Brooke Schreier Ganz
President and Founder, Reclaim The Records
https://www.ReclaimTheRecords.org/

On June 27, 2019, we sent an update to this FOIL request:

Hi there, lawyers and bureaucrats of DORIS. We at Reclaim The Records originally submitted this New York State FOIL request to you, # FOIL-2019-860-00035, asking for copies of various Google-related documents, back in late January 2019. It is now late June 2019, which is far past the mandated legal deadline for responses to FOIL requests.

Your original acknowledgement of our request had an estimated reply of April 2019, which was more than twenty days out from January, and was therefore already a breach of FOIL’s timetable for response or records production. As you can see from the “note” attached to the request in this system, we protested that extension to you in late January. But you failed to reply to our note, nor give us any reason why there should be such a delay. Heck, you didn’t even give us the courtesy of providing a bad reason.

Then you extended your own FOIL reply deadline two more times, which seems like a pretty nice perk for a government agency to give itself, even if it is against the law.

In your most recent extension of your required reply, which bumped your estimated date to July 25, 2019, you wrote that it was because there’s a problem with the city’s ediscovery software vendor. However a great deal of the items we specifically mentioned in our FOIL request would also presumably be available to your agency in non-email systems and servers, such as copies of contracts or vendorization documents or receipts or meeting minutes or phone logs, etc. And yet you haven’t provided any of those non-email items yet either, not one record. Are you really claiming that all of those other types of records are wholly unavailable too?

So, we’re writing to let you know that the latest and greatest extension deadline you have set for yourself, which is July 25, 2019 at 2:00 PM, will be the final extension that we choose to accept from you. If you do not provide your reply and all of the requested documents on or before that date, we will consider this FOIL request to have been constructively denied by your agency — and we will move forward with all legal options, including a shiny new Article 78 petition and lawsuit in the Supreme Court of New York.

And since you guys, and your legal department, know very well that we at Reclaim The Records have happily and successfully sued you and won records from your agency, and from other city and state agencies, in multiple FOIL cases before, we hope you’ll recognize that we’re not bluffing here. We hope you’ll reconsider your tendency for procrastination and simply choose to follow the law, before we take you to court yet again.

Public records belong to the public, and these Google “research project” documents and your agency’s secret Google NDA are no different. Hiding or withholding public records from the public would be wrong for any city agency, but it is especially and hilariously wrong coming from the literal Department of Records.

Also, please give our best to your colleagues at Google, who are probably pressuring you guys to withhold some of these materials. And feel free to let them know that we look forward to discovering just how many other American cities have also signed these super-secret NDA’s and government agency “research projects” with their company. Maybe they should have Googled the phrase “freedom of information law” before they assumed all this could stay hidden?

Looking forward to your timely and legally mandated reply, as always.

sincerely yours,
Brooke Schreier Ganz, on behalf of Reclaim The Records
https://www.reclaimtherecords.org/

We’ll keep you updated about what we find out.

Here’s the short version

We’re suing New York City for the first-ever public access to the scanned images of ~1.6 million NYC death certificates for New Yorkers who died between 1949-1968, which is 50 to 75 years ago. These records would be open to the public if the deaths had occurred in any other county in New York State outside the city limits.

We’re also suing to get the new awful rules restricting public access to historical New York City vital records thrown out by the judge.

Here’s the longer version, from our newsletter

our twenty-ninth exciting newsletter

OUR BIGGEST LAWSUIT EVER

Reclaim The Records seeks first-ever public access to 1.6 million death certificates for New Yorkers who died between 1949-1968

AND

Asks court to overturn recently-enacted restrictions on access

Non-profit organization Reclaim The Records files ninth Freedom of Information lawsuit, asking New York State Supreme Court to overturn burdensome and irrational restrictions placed on historical records in New York City; group seeks to acquire and provide free online access to 1.6 million death records

Hello again from Reclaim The Records! We’re that scrappy little activist group of genealogists, historians, journalists, and open government advocates, fighting for better public access to government-held genealogical and historical documents. And today, we have some very exciting news.

We just filed a new lawsuit, the biggest, baddest Freedom of Information lawsuit that we’ve ever filed. It’s a milestone case, not only for our organization, but also for how genealogists, historians, and researchers as a community deal with government agencies who routinely withhold historical records from the public, and who pass capricious and irrational restrictions on public access.

Yesterday afternoon, in the Supreme Court of New York, New York County, we filed an Article 78 Petition against the following agencies and people:

• The New York City Department of Mental Health and Hygiene
• The New York City Bureau of Vital Statistics
• The New York City Board of Health
• Oxiris Barbot in her official capacity as New York City Commissioner of Health
• Gretchen Van Wye in her official capacity as New York City Registrar
• And last but certainly not least, Steven P. Schwartz in his official capacity as former New York City Registrar

This Petition challenges not only the Department of Health’s refusal to disclose records to us based on New York’s Freedom of Information Law (FOIL), but it also challenges the Department of Health’s restrictive regulations themselves. Additionally, this is the first time that our organization has gone after actual vital record certificates, as opposed to a records index of some sort.

This is also the first time, to our knowledge, that a Registrar of vital records has specifically been named in a lawsuit based on the policies that he or she actually promoted to restrict access to records.

Here’s what we’re fighting for, Part I

We’re asking for uncertified digital scans of every New York City death certificate from 1949-1968. Based on publicly available resources, we believe this to be 1,688,220 certificates, give or take a few, which the Vital Records department has already scanned.

Right now, only death certificates through 1948 are available to the public, at the NYC Municipal Archives, but everything else is locked up by the Department of Health, even death certificates that are more than fifty years old.

And this is especially galling because death certificates are completely open to the public in thirteen states, including California and Massachusetts. Another eight states have restrictions on death certificate accessibility that are more than zero but less than fifty years. And in another twenty-three states, fifty years is the rule.

This even includes every other part of New York State, where the rule is also fifty years! But in the past eighteen months, New York City’s Department of Health has pushed through horribly restrictive new rules that changed the City’s embargo time period to seventy-five years. Even for records of people who are really quite dead.

This is only possible because of a legal oddity in which New York City is its own vital records jurisdiction, which gives it some authority to set its own policies. It is the only city in the country (aside from Washington DC) whose vital records are not governed entirely by the state in which it is located. But although the Department has much more leeway than most other cities, they are still bound by New York laws, including the Freedom of Information law.

So we requested under FOIL copies of all death records from New York City that are over fifty years old, ones that would be available to the public if the decedent had died in, say, Yonkers or Buffalo or anywhere else in the state outside the city limits. This is why we’ve limited our request to 1949-1968. But the Department of Health denied our request.

So, the first part of our suit seeks to reclaim those records. But the Department of Health denied our request specifically because of their new restrictive rules, which they passed in the face of overwhelming public opposition.

Which brings us to the next part of this lawsuit.

Here’s what we’re fighting for, Part II

We are trying to strike down New York City’s ridiculously restrictive new access rules to these historical materials. We’re asking the judge to rule that the New York City Department of Health and Board of Health created irrational rules and exceeded their authority in making local rules and policies that are more strict than the actual state law.

Yes, NYC is empowered to have its own Department of Health, separate from the rest of the state. But if it enacts new rules, they have to be rational. If an agency passes rules that are “arbitrary and capricious” or ultra vires (beyond their power), then those rules can be stricken down by a court.

We’re asking the judge to rule that these irrational new rules were passed with gross indifference to the six thousand unanimously negative public comments submitted by the genealogist and historian community, and as such should be striken and voided.

Ignore the genealogists at your peril

When you read our Petition, you’ll see quotations from many notable people and venerable societies within the genealogical community, who took the time to give testimony and provide public comments to the Department of Health, carefully documenting all the reasons why these new rules were a very bad idea — but who were then totally ignored.

In October 2017, sixty-two genealogists even showed up at a Department of Health public meeting (see also our eighteenth newsletter) to protest the proposal of these new rules. This was more people than had shown up to any New York City Department of Health meeting on any subject in several years! Every person who gave testimony spoke out against the proposal. Not even one member of the general public submitted a comment in favor of the new stricter rules.

Pictured above: some of the sixty-two genealogists, historians, and adoptee rights activists who protested the proposed rule change at the New York City Department of Health public meeting in Long Island City, Queens, in October 2017.

But the Department of Health didn’t listen to the thousands of public comments that poured in, unanimously in opposition to their proposed rule change.

And so in our Petition, we don’t just make a legal case. We also carefully lay out the whole story of how the New York City Registrar Steven P. Schwartz bamboozled the New York City Board of Health — who are experts in health matters, but not necessarily well-versed in records access issues — with misleading statements and evasive answers, while also ignoring expert testimony, thereby leading to some of the most severe restrictions on public access to historical materials in the entire country.

Wow. Show us the documents!

With pleasure!

• Our FOIL request for the scans of the 1949-1968 NYC death certificatesWe submitted our New York State Freedom of Information Law (FOIL) request on February 7, 2019.
• NYC DOH denies our FOIL requestFour days later, on February 11, they wrote back to us like “LOL, no.”
• Appeal of their FOIL denialOn March 7, we appealed their denial, and pointed out that they were violating the law. You know, a minor detail.
• Denial of our FOIL appealBut they denied our FOIL appeal on March 21. (Actually they denied it twice, revising and resending to us just before the deadline was up.)
• Advisory Opinion from the New York State Committee on Open Government (COOG)The Committee on Open Government (COOG) is funded by the New York State Legislature to be a free resource for both the public and for state agencies about what is and is not permissible under the state’s Freedom of Information law. Robert J. Freeman, the Executive Director of COOG, wrote an Advisory Opinion in our favor about the legal merits of our FOIL request. We made a copy of his Advisory Opinion available to the Department of Health, but they still didn’t budge on denying our appeal.
• Article 78 Petition (Lawsuit)And so, having exhausted all remedies, we at Reclaim The Records sued New York City, and filed the case in the Supreme Court of New York on April 17, 2019. This is the full text of the lawsuit, minus the exhibits and attachments. It’s forty-seven pages of fun! And it tells the story of how New York City got into this mess, and what we want to do about it.You should read this! And show it to your friends!

But wait, there’s more! Check out these AMAZING affidavits!

In support of our lawsuit, we decided to get four representatives with very different backgrounds and specialties to talk about why the New York City Department of Health’s access restrictions are not only irrational, but actively harmful: to their businesses, to legal cases, to the United States military, to citizenship, and even to health itself.

(You might recognize some of these names.)

• Affidavit #1 – Roger Joslyn, on the effect of records being withheld in probate, kinship, and other legal mattersRoger Joslyn is a past president of the Association for Professional Genealogists (APG) and an expert witness who has been working with New York City vital records for decades. He compares and contrasts the difficulty in getting records in New York City to other areas of the country.
• Affidavit #2 – Megan Smolenyak, on the repatriation of United States servicemembersMegan Smolenyak’s genealogical work has been on the front page of the New York Times twice. She is a consultant to the U.S. Army who assists them in identifying and locating genetic matches and also the legal next of kin of soldiers killed overseas during WWII and the Korean War, so that they can be brought back to the US for burial.
• Affidavit #3 – David Bushman, on the need for records access for family health reasonsDavid Bushman is a retired attorney with New York City roots — and a carrier of a mutated BRCA1 gene, which causes multiple types of aggressive cancers. He is being blocked from finding and warning distant relatives of their health risks, because cousins and other more distant categories of kinship are currently excluded by the NYC DOH from receiving even uncertified “informational” copies of historical death certificates.
• Affidavit #4 – Kelly Bodami, on the NYC DOH blocking people from their lawfully entitled citizenshipKelly Bodami helps people pursue Italian dual citizenship, which is based on heritage rather than place of birth, or jus sanguinis. That means it requires paperwork to show an unbroken chain of descent. And a large percentage of Italian-Americans trace their roots to New York City. Kelly has a running list of about thirty people whose attempts to regain their family’s nationality have been severely disrupted or made impossible by the ineptitude of the NYC DOH in not allowing access to historical death certificates.

Frankly, we could have probably found thousands of people with even more horror stories about trying to get records out of NYC.

Oh! And let us introduce you to our attorney!

Meet Michael Moritz, genealogist by night and lawyer by day

Michael is a fellow genealogy nerd, who has performed genealogy research for hundreds of individuals of all backgrounds and through the archival records of more than thirty countries. If you watched the recent episode of Finding Your Roots on PBS delving into author George R R Martin’s family history (spoiler: there was a surprising NPE in there), Michael was the guy who did the family research.

And Michael is also an associate at the large international law firm Skadden, Arps, Slate, Meagher & Flom. (They’re kind of a big deal.) Fortunately, Skadden has a robust pro bono program, and its attorneys partner with many amazing non-profit organizations who need legal help. And guess which organization Michael volunteered to assist?

This is Michael’s first case with us, and we are thrilled to have him on board!

By the way, if you’ve noticed that the tone of this newsletter is unusually restrained for one of our publications, you can thank him for that.

What’s next?

Well, now we have to wait for that long list of Respondents to, well, respond. This case is a big one, and may be tied up in court for all of 2019, maybe into 2020 as well. Even if we win this case — and that’s an if, there are no guarantees, of course — we think the City will probably appeal it. After all, wouldn’t you be mad if some upstart little non-profit activist group busted you for exceeding your authority as a government agency?

And speaking of little activist groups…

We need your help. This new case is a big deal for all of us, and we quite simply couldn’t do this kind of work without your donations and your support. If you’re enjoying this story of David taking on Goliath, then please help us take on more of them! Because there are Records Bullies in many cities and states, and we want to use the law to knock them all back down, and reclaim more records for free public use.

So, if you’re interested in making a donation in support of this new case, or any of our other cases (and we have several!), we would be very grateful.

And stay tuned for even more exciting records news coming soon! ?

Welcome to the single stupidest lawsuit that our organization has ever had to file.

Alternately, we could subtitle this story let’s all gather round and watch the NYC Department of Records light taxpayer money on fire!

You might remember our friends at the New York City Municipal Archives from our very first lawsuit back in 2015, the one that sparked the formation of Reclaim The Records, where we fought them under the New York Freedom of Information Law and won the first-ever public copies of the New York City marriage license indexes. Since then, we’ve acquired many other records sets from the Archives, without much fuss or bother, including the 1924 List of Registered Voters, which is online, and the microfilms of the New York City Geographic Birth Index, which are still in the process of being digitized.

Well, the Municipal Archives holds many wonderful treasures in its vaults, but very few of them have ever been available to people outside of the building. So, a few months ago, we at Reclaim The Records made a new FOIL request asking for a copy of their master microfilm database, along with many specific inventory lists for interesting records sets. And in July 2018, we made the first of what will probably be many, many FOIL requests that our organization has committed to making over a multi-year period from the Archives, picking and choosing some of these historically important record sets from those inventories.

This new FOIL request — filed through the MuckRock portal, of course, because we like doing our work out in the open where everyone can see it — was for a really awesome records set called the Brooklyn (Kings County) “Old Town” Records. We asked for copies of the approximately 143 microfilms of this records set, which is a lot of material but not unreasonable. There are many other records included as part of these Kings County Old Town records, and only about 20% of the materials were ever microfilmed, but we decided to start with just those films because it’s easier and less expensive for us to get microfilms copied under FOIL.

And these old Brooklyn records are, from all accounts, AMAZING. They’ve never been online. They’ve never been on any paid genealogy website. They’ve never been allowed to be copied by FamilySearch. They’ve only ever been avilable in the Archives building…if you knew where to look and what to ask for.

They’re a mish-mash of surviving records from all the little old individual towns in Kings County (Flatbush, New Utrecht, Williamsburg[h], Flatlands, etc.), before they eventually got swallowed up into Brooklyn, and before Brooklyn then was merged into New York City.

Some of them start in 1670, during the Dutch Colonial period. No, that’s not a typo.

And they go all the way up to 1898.

There are births, marriages, deaths. Again, these have never been online before, or anywhere else before.

There are tax assessment lists and military draft lists. There are lists of troops, both before and during the Civil War (listed in the inventory as the “War of Rebellion”). There are lists of school children. There are deeds. There are mortgages.

There are early 19th century birth certificates for enslaved New Yorkers. ?

There are manumission papers for enslaved New Yorkers being set free. ?

And this is only talking about the 20% of this record set that was ever microfilmed.

And we saw this inventory of these records and we were like WE HAVE TO GET A COPY AND PUT THIS ONLINE. WE HAVE TO. NOW NOW NOW. HOW HAS THIS NEVER BEEN ONLINE OR AVAILABLE BEFORE, WTF.

So, in July 2018, we filed a FOIL request for the copies of these roughly 143 microfilms. And here is what we wrote:

Pursuant to the New York Freedom of Information Law, and acting on behalf of the 501(c)3 non-profit organization Reclaim The Records, I hereby request microfilm copies of the approximately 143 microfilm rolls of the Kings county (Brooklyn) “Old Town” records. These microfilms were originally created by St. Francis College and were given to the New York City Municipal Archives with other materials circa 1988. In a previous FOIL request to your agency that was resolved a few weeks ago, we received a PDF copy of the finding aid to these microfilms from the Archives , to which your agency may refer if needed.

These documents will be made available to the general public, and this request is not being made for commercial purposes. We are going to digitize all the microfilms and put them online for free public use.

Please inform me of the total charges in advance of fulfilling the request.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 5 business days, as the statute requires, as required by law.

We didn’t think it would be a big deal. After all, hadn’t the Archives learned from their experiences over the past few years?

Well, no. Apparently not. We found out to our surprise that our FOIL request was rejected by the head of the Archives.

Below is the content of the e-mail we sent to the Archives when we saw their rejection. We have decided to share it with the community. We hope you’ll find it educational.

Hi Ken,

I don’t mind using the new NYC OpenRecords web portal to submit Reclaim The Records’ future FOIL requests — and we do plan on submitting many, many future FOIL requests to the Archives — but…

You rejected our simple FOIL request for copies of the Brooklyn “Old Town” microfilms? Microfilms of government records that are open to the public and not restricted? Are you serious?

This is literally the exact same legal issue that we at Reclaim The Records and you at the New York City Municipal Archives went through when we requested the city marriage license indexes from you in 2015. And perhaps you might recall that we won that issue, and won the records, in a lawsuit settlement, right? I mean, I know you personally had to sit for a deposition in the case, so I would think you’d remember?

All records — yes, ALL — that are already open and available to the public at the New York City Municipal Archives are covered by FOIL, period. All of them. I know you don’t like hearing that, but that is the law. And it’s not even a new law or an obscure law, it’s over forty years old!

I have to say I’m really disappointed in you, and in the Archives and DORIS, for choosing to waste more time and more taxpayer money going through this exact same issue with us again, and with the exact same dumb reasoning. If you’re going to reject our FOIL requests out of hand, could you maybe get some new and improved dumb reasoning, just to keep things spicy?

I mean, your statement “[y]our request under the Freedom of Information Law (FOIL) is being closed because the records are publicly available” is literally going to get you laughed at by our attorney, your attorney, and the judge. You’re flat-out admitting that these are publicly available and non-private non-restricted government-created records held in a government archive — which by definition means they are covered by FOIL. It’s not like this is even some kind of hinky legal grey area, it’s the obvious and plain meaning of the law, with decades of court cases to back it up. Including our own court cases!

If you don’t believe me, you’re welcome to call up Robert Freeman and his legal team at the New York State Committee on Open Government (COOG) in Albany for a free second opinion on this. They are happy to help both FOIL requestors and New York State government agencies learn more about the law. Their consultations are totally free, and they’ll usually get back to you within twenty-four hours. Their phone number is (518) 474-2518. Go, call them.

COOG is the same group who drafted and submitted an Advisory Opinion to DORIS on Reclaim The Records’ behalf, back during our 2015 lawsuit against you, remember? The one where they warned you in writing that Reclaim The Records was legally entitled to copies of the marriage license index records, but you chose to ignore them anyway? The one where they flat-out told you that yes, all open-to-the-public records at the New York City Municipal Archives are definitely covered by FOIL, specifically including microfilms? To help jog your memory, I have attached a copy of that 2015 Advisory Opinion from COOG to this e-mail. Please, please read it this time.

Based on the data from Reclaim The Records’ three (three!) successful lawsuits and settlements with New York City agencies in the past four years, I would estimate that your rejection of this FOIL request is going to cost DORIS probably ten to twelve thousand dollars, when you get done paying both your attorney fees and ours. That’s ten to twelve thousand dollars taken from New York City taxpayers, for no obvious reason other than your own stubbornness. I don’t even live in New York anymore, but I’m still thoroughly annoyed at that number on their behalf.

Our attorney, Dave Rankin, will be filing the FOIL Appeal with you in the next few days. At that point, you’ll probably reject it, and then we’ll all move on to the lawsuit, and then you’ll be delivering the copies of the records to us and cutting a check to Dave by the end of the year.

We at Reclaim The Records remain ready and willing to file as many lawsuits as it takes for DORIS and the New York City Municipal Archives to accept your responsibilities under the law. Public records belong to the public.

We look forward to winning the copies of these historic Brooklyn records and putting them online for free use, where they belong.

sincerely,

Brooke Schreier Ganz
President of Reclaim The Records

On August 6, 2018 we filed our FOIL Appeal. On August 21, 2018 our appeal was rejected by Pauline Toole, who is the Commissioner of the Department of Records and Information Services for the City of New York. She did not provide any legal reasoning at all for her denial, other than to double down on repeating that the records are publicly available, seemingly unknowing or uncaring that this obviously means the records are subject to the state Freedom of Information Law, and copies must be made available upon request and upon offer to pay for the duplication.

And so on October 15, 2018 we sued the city in the Supreme Court of New York for the return of the records to the public.

Stay tuned to our website, our Twitter feed, and our Facebook page for updates. We hope you all want to see these amazing historic New York records as much as we want to publish them.

If the Archives wants a fight, we can surely oblige them.

As a follow-up to our successful FOIL request to get the New York State death index 1880-1956, we turned our attention to the handful of missing years and localities in that index. One of those is the city of Yonkers, New York, whose records were not included in the statewide death index until about 1914-1915. On September 6, 2017, we filed a FOIL request (which you can read here at MuckRock) asking the Yonkers City Clerk’s Office for the death index for the missing years:

To Whom It May Concern:

Hi, my name is Brooke Schreier Ganz, and I am the president and founder of a non-profit organization called Reclaim The Records. We use Freedom of Information laws and open data laws to get copies of inaccessible archival record sets released back to the public, for free use.

Pursuant to the New York State Freedom of Information Law (1977 N.Y. Laws ch. 933), I hereby request the following records:

I would like to receive a copy of the index to all Yonkers death records, from as early as such records are available (presumably the mid to late nineteenth century?) through December 31, 1915, inclusive. Please note that this request is for the basic index (or finding aid) only, and I am not asking for any of the actual death certificates. Our organization is hoping to make it easier for genealogists to learn which records your office may have on file in the first place, so that they can order copies of their relatives’ death certificates from your office or from the state.

While vital records, including actual death certificates, are subject to privacy laws, the basic index to the records is required to be open to the public under the New York State Freedom of Information Law (FOIL). Almost two years ago, I filed this same request with the New York State Department of Health in Albany, asking for copies of their statewide death index. At that time, they only maintained their statewide death index copy in old-fashioned microfiche format, and only at a small number of upstate libraries. After a seventeen-month-long fight with them, including legal discussions with my attorneys and their Records Access Officers, the state finally conceded that an index to these records must be made available to the public under FOIL. I received my copy of the state death index from them a few months ago and our organization has recently put it online for free public use, at the Internet Archive. Having this digital copy of the index will help millions of people with New York State roots research their ancestors and order more record copies from the state.

However, that statewide death index we won, which runs from 1880-1956, does not include any deaths for Albany, Buffalo, or Yonkers prior to about 1914 or 1915, because those cities weren’t great about compliance with the law. I would like to try to fill in the gaps in the online statewide file with your city’s information, so that people can track down their ancestors’ records and order copies from you.

Please let me know in which formats you have this death index. If you have the data on microfilm, I will be happy to order copies of those, as it would probably be the easiest format to duplicate. If you have never microfilmed or digitized the index to your death records before, I would prefer that you scan or digitally photograph all the pages at a high definition. Because this is a FOIL request, I recognize that I will be required to reimburse your fair costs for doing this, either by using in-house staff at your office, or perhaps hiring an outside vendor to do the scanning or photography for you. I will also pay for the insured shipping of the record copies to California, if necessary.

Please be advised that if you ignore or deny this request, our organization will take your office to court, under the New York Freedom of Information Law. In the past three years, we have already sued two different New York City agencies for copies of genealogical records and won settlements both times, and even won our attorneys fees the second time. And we are currently engaged in litigation against the Missouri Department of Health and Senior Services, fighting for copies of their statewide birth index and death index. Hopefully, that kind of legal action will not be required in this case, but we did just want to point it out to you from the outset, so you would at least have fair warning. A FOIL request like this is not a favor, it’s the law, and we are willing and able to use the law.

Please feel free to reach out to me directly if you have any questions or concerns about any part of this FOIL request. My phone number is [redacted] and my e-mail is [redacted]. Please inform me of any potential charges in advance of fulfilling my request.

Please also be advised that this FOIL request is being filed publicly through the website MuckRock.com, and all correspondence about this request will be immediately published to the general public.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within five business days, as the statute requires.

Throughout late 2017 and early 2018, things seemed to be going well. Our request was not only acknowledged by various people within the Yonkers City Clerk’s Office, they even asked in e-mails what file type we would prefer for the digital images! And we spoke to them on the phone and they sent us some sample images of the books, like this one:

But then? They just stopped answering all our e-mails. They totally ghosted us.

In January 2019, we started pulling together all the e-mails and photos and other materials for our attorney to finally file a FOIL Appeal, as our request has apparently been constructively denied. We submitted our appeal in March, 2019, and made it clear that we were done waiting around, and they would face a lawsuit if they didn’t comply.

Depending on how Yonkers responds (or not), this may soon turn into a brand new Freedom of Information lawsuit. We want these records released back to the public! Stay tuned…