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 (June 2018): A second round of depositions is being scheduled for DHSS staff.

What We Did and How We Did It

In Missouri, death certificates that are more than fifty years old (i.e. pre-1965) are considered open to the public. To their credit, Missouri does publish those newly-opened records on a regular basis, and they have even set up a transcription project that has created an index for the information in the files. But Missouri currently does not have a basic genealogical index available to the public for deaths that occurred in the state after 1965.

In early 2016, Reclaim The Records discovered that Missouri’s state Vital Statistics law actually may allow for the publication of basic death 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 Missouri state death index released to the public:

Subject: Missouri Sunshine Law Request: Request for the Missouri death 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 who died 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 deaths, and is not a request for any actual death certificates. If it is possible, I ask that the Department of Health and Senior Services also include each person’s sex and death 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.

But while we had initially made a records request that asked for all Missouri death index data for 1910-2015, their Department only kept data for 1965-2015, as the earlier 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.

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 death index records from January 1, 1965 through December 31, 2015, they pretended that it would cost us $488,324.64 (11,688 hours at $41.78/hour). (In case you were wondering, 11,688 hours is more than a year 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).

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 death records query would actually be something like $2,165.88 — a huge discount on their previous price for the records.

But even that wasn’t fully accurate. To get to that $2k 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.

We’ve posted the relevant documents in the “Paperwork and Court Filings” tab on this page. 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 its MuckRock page.

SEE ALSO: Records Request #6 for the Missouri Birth Index, 1910-2015

Paperwork and Court Filings
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)

On 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)

On August 24, 2016, our attorney responded to the Department's letter.

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

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

Reclaim The Records vs. MIssouri Department of Health and Senior Services - Notice of Deposition
Reclaim The Records vs. MIssouri Department of Health and Senior Services - Notice of Deposition

After failing 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 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.

State or Vital Records Jurisdiction: Missouri

Government Agency: Missouri Department of Health and Senior Services

Law: Missouri Sunshine Law

Record Type: Death Records

Record Years: 1965-2015

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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Screenshot of the initial estimated costs of our Missouri Sunshine Law requestsList of Registered Voters, 1924