A Freedom of Information lawsuit for these records is in progress

We filed a Missouri Sunshine Law suit against the Missouri Department of Health and Senior Services (DHSS) in Cole County, Missouri on November 23, 2016. Latest update (July 2019): We submitted our Motion for Summary Judgment papers in late May (and you can read them here, here, here, and here). We are waiting to receive the state’s response to the motion, and will then reply to it.

What We Did and How We Did It

Missouri does not have a basic genealogical birth index available to the public for any year after 1910. But in early 2016, Reclaim The Records discovered that Missouri’s state Vital Statistics law actually may allow for the publication of basic birth index data, even though they have not done so in the past. So in February 2016, we filed a request under the Missouri Sunshine Law to get that birth index released to the public:

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.

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 the data existed in database format.

They did let us know that while statewide vital records registration was supposed to have started in 1910, in reality there was only incomplete information in their database system until about 1920, and so our request might only be able to start in 1920, with possible scattered birth data for earlier years, for some areas of the state. We said okay and agreed to amend the years of our request.

However, we then ran into two problems with the agency:

  1. 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.
  2. 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, 1920 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, 24 hours a day, 7 days a week. It is also 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).
Screenshot of the initial estimated costs of our Missouri Sunshine Law requests

No, really, this is a screenshot of what they tried to tell us it would cost to get copies of these public records.

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 records query would actually be something like $3,008.16 — a huge discount on their previous price for the records.

But even that wasn’t fully accurate. To get to that $3k 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 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.

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 they ignored it and never responded to that latter, 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.

But that’s not all. Missouri’s Sunshine Law allows for people 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.

Reclaim The Records vs. Missouri DHSS - E-mail from Former Missouri State Registrar Garland Land

When we got a trove of their e-mails in discovery, we found one from the former Missouri State Registrar Garland Land, who blatantly advised DHSS to break the Missouri Sunshine Law by only responding with “mounds of paper” rather than the database version required by the Sunshine Law, and to also make us request each date individually, rather than a date range. He also advised DHSS to “require [Reclaim The Records] to take you to court”, and simultaneously advised trying to get DHSS to change the law in the state legislature! Which they did try, so far unsuccessfully.

We’ve posted the relevant documents in the “Paperwork and Court Filings” tab on this page, ranging from letters to transcripts of depositions to affidavits to our motion for summary judgment. We hope you’ll enjoy reading them. More will be posted as they come in.

You can follow the progress of this request in realtime through Missouri Case.net, which is the Missouri court system tracking website, or by watching the MuckRock page.

SEE ALSO: Records Request #7 for the Missouri Death Index, 1968-2015

Paperwork and Court Filings
Initial cost estimate for our two Sunshine Law requests (June 24, 2016)
Initial cost estimate for our two Sunshine Law requests (June 24, 2016)

No, really, this is a screenshot of what they tried to tell us it would cost to get copies of these public records.

Letter from MO Dept of Health and Senior Services to Reclaim The Records (August 9, 2016)
Letter from MO Dept of Health and Senior Services to Reclaim The Records (August 9, 2016)

After several months of haggling about the price of these records under the Missouri Sunshine Law, the Department of Health and Senior Services attempted to claim to us that these records were not actually available under the law at all.

Letter from Reclaim The Records to the MO Dept of Health and Senior Services (August 24, 2016)
Letter from Reclaim The Records to the MO Dept of Health and Senior Services (August 24, 2016)

Our attorney responded to the Department's letter, wherein he helpfully pointed out to them that they were breaking the law. He also warned them that we would be filing a lawsuit if they did not comply with the Sunshine Law.

Reclaim The Records vs. Missouri Department of Health and Human Services (November 23, 2016)
Reclaim The Records vs. Missouri Department of Health and Human Services (November 23, 2016)

Having received no answer to our attorney's letter, we filed in court against the Department in the Circuit Court of Cole County, Missouri on November 23, 2016.

Notice of Deposition (October 15, 2017)
Notice of Deposition (October 15, 2017)

After they failed to provide information about multiple e-mails they had refused to turn over in discovery, we filed a notice of deposition on October 15, 2017 to make them finally talk about all the e-mails they didn't want us to see, and why.

Letter to Assistant Attorney General Shawna Bligh (November 22, 2017)
Letter to Assistant Attorney General Shawna Bligh (November 22, 2017)

In this letter, our attorney Bernie Rhodes lays out the long history of the four different Assistant Attorneys General of Missouri refusing to cough up hundreds of supposedly "privileged" e-mails, and sets a deposition date of December 11, 2017.

Motion to Compel Production of Documents (January 4, 2018)
Motion to Compel Production of Documents (January 4, 2018)

Missouri DHSS refused to turn over hundreds of internal e-mails and documents to our attorney, claiming they were privileged, but then refused to explain why they were privileged, even when in a closed deposition. So in January 2018 we filed a Motion to Compel Production, to force them to turn over the files.

Deposition of Kerri Tesreau (July 27, 2018)
Deposition of Kerri Tesreau (July 27, 2018)

Kerri Tesreau was deposed by our attorney Bernie Rhodes about DHSS' behavior in this case.

Motion for Summary Judgment (May 21, 2019)
Motion for Summary Judgment (May 21, 2019)

On May 21, 2019, we filed our Motion for Summary Judgment with the court. And here it is.

Plaintiff's Motion in Support of Motion for Summary Judgment (May 21, 2019)
Plaintiff's Motion in Support of Motion for Summary Judgment (May 21, 2019)

Here's thirty-six more pages of fun. The sub-heading titles include "Looking for dirt on Reclaim the Records" and "The secret plan to deny Ms. Ganz’s request" and "DHSS executes the secret plan". You know, the usual behavior you'd expect from a state government agency.

Affidavit of Brooke Schreier Ganz (May 21, 2019)
Affidavit of Brooke Schreier Ganz (May 21, 2019)

The founder and president of Reclaim The Records, who originally filed the two Sunshine Law requests in this suit, gave her affidavit to the court...

Affidavit of Bernard J. Rhodes (May 21, 2019)
Affidavit of Bernard J. Rhodes (May 21, 2019)

...and our attorney Bernie Rhodes provided his own affidavit to the court, too.

E-mail from Former Missouri State Registrar Garland Land
E-mail from Former Missouri State Registrar Garland Land

When we got a trove of their e-mails in discovery, we found one from the former Missouri State Registrar Garland Land, who blatantly advised DHSS to break the Missouri Sunshine Law by only responding with "mounds of paper" rather than the database version required by the Sunshine Law, and to also make us request each date individually, rather than a date range. He also advised DHSS to "require [Reclaim The Records] to take you to court", and simultaneously advised trying to get DHSS to change the law in the state legislature! Which they did try, so far unsuccessfully.

State or Vital Records Jurisdiction: Missouri

Government Agency: Missouri Department of Health and Senior Services

Law: Missouri Sunshine Law

Record Type: Birth Records

Record Years: circa 1920-2015 (some incomplete data may exist for some areas of the state for 1910-1920)

Record Format: Index

Record Physical Format: Database format

Number of Records (Estimated): Unknown

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(We ask because some states' Freedom of Information laws only allow state residents to make a FOIL request.)












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