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.

On October 14, 2020, Reclaim The Records made a Freedom of Information Act (FOIA) request to the United States National Archives and Records Administration (NARA), asking for billions (yes, billions) of digital images and their associated text metadata, to return online access to American historical documents to the public.

This is the full text of that FOIA request, which we submitted online through the MuckRock platform:

FOIA Request for all digital images and text metadata created through NARA’s public-private digitization partnership program

To Whom It May Concern:

This is a request under the Freedom of Information Act.

I represent a 501(c)(3) non-profit organization called Reclaim The Records. We are an activist group of genealogists, historians, journalists, teachers, and open government advocates. We acquire genealogical and historical databases and images from government sources, including government archives, often through the use of Freedom of Information laws. We then upload those records to the Internet, without any copyright or usage restrictions or paywalls, making them freely available to the public and returning these taxpayer-funded materials to the public domain.

 

PART I: BACKGROUND FOR THIS REQUEST

The United States National Archives and Records Administration (NARA) has for several years managed an innovative public-private partnership program to digitize many of the important historical documents they hold, particularly records that would be useful for family history research. These include multiple enumerations of the United States Federal Census (through 1940), immigration and naturalization records, military and veteran records, tax assessment lists, and more.

More than four hundred of these important historical record sets have been digitized so far under this long-running partnership program, with each of those record sets containing hundreds of thousands, or more often millions, of individual documents. A likely-incomplete listing of these record sets is available on the NARA web page “Microfilm Publications and Original Records Digitized by Our Digitization Partners” located at https://www.archives.gov/digitization/digitized-by-partners . The total number of unique historical documents digitized and transcribed through this program is probably in the billions.

In exchange for having private corporations and non-profit organizations agree to become “partners” and digitize these historical records from their original paper or microfilm formats — a massive task that would be largely cost-prohibitive for NARA to conduct on its own — NARA agreed to let these partners have the exclusive use of those newly-digitized materials on their own websites for a certain amount of time, an “embargo period”.

This grant of a supposedly exclusive entitlement to public records was meant to induce these partners to spend their time and money to conduct the records digitization and transcription at their own expense, instead of at the taxpayer’s expense. But while well-intentioned, it also meant that these original historical records were often completely removed from public access while the companies worked on them, making the records functionally unavailable to researchers, sometimes for years.

And even once the digitization and transcription work was finally completed, the exclusivity period for each newly-created digital record set was also supposed to be time-limited. After the stated embargo period would end for each unique record set, usually within five years but sometimes in three years, NARA would then be able to freely disseminate the now-digitized versions of these public documents, both the images and the text metadata that accompanied them. NARA’s own policies state that the agency could and would publish the digital copies through NARA’s own website or in their official online Catalog or through their official API access or through other means. See item number two from “NARA Principles for Partnerships to Digitize Archival Materials” at https://www.archives.gov/digitization/principles.html :

“2. After an agreed-upon period of time, otherwise known as an embargo period, NARA gains unrestricted rights to the digital copies and the associated metadata transmitted to NARA by the partner, including the right to give or sell digital copies in whole or part to other entities, if NARA so chooses. If resources permit, we will try to make the digital materials available in our online catalog within the same year they are no longer in the embargo period.”

But in practice, this simply hasn’t happened. NARA has never actually posted online the vast majority of these records that were digitized through their partnership program, not to their Catalog nor indeed anywhere else where the public might be able to freely access and download the now-digital records. This remains the case today, even when the embargo periods for many of these record sets have been expired for more than a decade, sometimes two decades. A small number of the records are now finally online in the NARA Catalog, but even there, the data sets are still not available to the general public as bulk image or bulk data downloads and are cumbersome to search or use individually.

Instead, literally billions of these historical American records remain solely in the hands of NARA’s primary digitization program partner, Ancestry.com. Ancestry is a private corporation, previously co-owned by a private equity firm and the government of Singapore’s sovereign wealth fund, until they were sold to a different private equity firm for $4.7 billion in August 2020. Ancestry has purchased several smaller companies in the genealogy and family history space over the past few years, including the companies Fold3.com and Archives.com, both of which had previously independently been included in NARA’s digitization partnership program. Thus, the vast majority of the billions of records digitized through NARA’s partnership program are now available only behind Ancestry’s subscription paywall, or through companies now owned by Ancestry with their own additional subscription paywalls. Annual subscriptions to these websites can cost hundreds of dollars per year per person.

NARA surely did not mean to create a de facto monopoly on nearly all digital copies of important American historical documents like the Census and immigration records and military files, all for the benefit of a single private corporation. But by not making the no-longer-embargoed documents available to the public anywhere else, not even on NARA’s own website, and leaving them solely in the hands of their mostly-commercial partner organizations, that is exactly what has happened.

NARA’s own “Principles for Partnerships to Digitize Archival Materials”, as referenced above, clearly states in item number seven that:

“Public access to publicly owned resources will remain free. Partners may develop and charge for value-added features, but access to the digital copies ultimately should be readily accessible and free…NARA will have unrestricted ownership of these copies, including the right to make these copies freely available online for download.”

However, in practice, NARA has also repeatedly denied independent requests for copies of even subsets of this voluminous partnership-created digital data. We are aware of at least three different entities, two genealogy-related corporations and one non-profit organization, none of which were NARA digitization partners, who each independently requested and were each denied access to copies of this data through e-mails, phone calls, meetings, and other discussions with NARA leadership. In all three cases, NARA denied the requests, saying that NARA would put the records online themselves, through their Catalog or API…eventually.

Thus, the end result of NARA’s digitization partnership program has been that billions of important American historical documents were successfully digitized and transcribed — but then were mostly not made available to the public for decades in any way other than by requiring the public to buy expensive annual data subscriptions benefiting private corporations, primarily a single multi-billion-dollar conglomerate, whose previous owners included a foreign government.

We at Reclaim The Records would now like to make an official request for open public access to these important American historical records.

 

PART II: OUR REQUEST

Under the Freedom of Information Act, we at Reclaim The Records request copies of the following:

1) We request every single record created under NARA’s public-private digitization partnership with the entities Ancestry.com, Fold3.com (formerly known as Footnote, now owned by Ancestry), Archives.com (now owned by Ancestry), and FamilySearch (a non-profit organization). We do not request any records that were created through NARA’s partnership with other smaller entities, such as the Daughters of the American Revolution (the DAR). Specifically:

1a) We request all of the digital images, in their original, full-size, uncompressed, and non-watermarked versions.

1b) We request all of the associated text metadata (names, dates, places, etc.) also created under the partnership agreement, which goes along with those images, making them searchable. For example, a spreadsheet or database may have been created for each data set that lists the name of each person referenced in each image, along with the date, the location, or other extracted information such as place of birth, marital status, volume number, census enumeration district, microfilm reel number, or any other text information relevant to that particular data set and/or each individual image.

1c) We request all copies of finding aids, training materials, handbooks, checklists, formatting guidelines, data dictionaries, data templates, data lists, or other internal documentation that explains more about the digitization of these images and the transcription and compilation of their associated text metadata, and how they relate to each individual data set.

2) We also request any records that were digitized under NARA’s partnership program that may not have been properly delivered or returned to NARA after their digitization was completed. We have heard stories about records that remain solely in the possession of certain partner corporations, for which NARA never collected the files upon completion of the image scanning and the text metadata entry. We therefore request copies of all the partnership-created digital images, associated text metadata, and finding aids (or data dictionaries, documentation, templates, etc.) for those previously-undelivered files, as well. To be clear, we contend that NARA is required to collect these records from these companies and produce them to us in response to our request and we are requesting that NARA do so.

 

PART III: FORMAT OF PRODUCTION

We request that all of these files, the images and text metadata and finding aids and data dictionaries and so on, be turned over to us in their original digital formats, as they were delivered to NARA by the partners, or turned over for the first time if the partner never delivered the final files to NARA as they should have.

We would like to receive our copies of this information on portable USB drives. We are willing to pay the costs for purchasing those drives and for their insured and trackable domestic shipping. However, we believe some of this data may already be stored online in the Amazon Web Services (AWS) S3 Glacier system, which we believe NARA uses for its internal file storage. If this is the case, then for any data sets that are already completely online in AWS S3, we would consider receiving just the online versions of those specific data sets, by having that data copied directly from NARA’s AWS S3 bucket(s) into Reclaim The Records’ AWS S3 bucket(s), and those data sets would then not need to be downloaded to a USB drive.

Please inform us of all fees in advance of fulfilling our order.

 

PART IV: REQUEST FOR FEE WAIVER

We also request to be treated as a “media requester” for the purposes of calculating the fees for this FOIA request. We are a non-profit organization, not a commercial entity. We do not charge for copies of any of the tens of millions of records we have already acquired from government agencies and released to the public. We are one of the largest open records organizations in the United States. As of October 1, 2020, our e-mail newsletter, which has been published several times a year for the past six years, now has a circulation of over 7,500 subscribers. Our social media outlets such as our Facebook page have more than 11,000 followers, and our Twitter account has more than 6,100 followers.

We have even created several free standalone websites to both disseminate and discuss the data that we receive from government entities. As just one example, please see our website https://www.MissouriDeathIndex.com/ and our multiple associated newsletter issues linked from that website. We don’t just release data sets, we discuss them too, using our editorial skills and discretion, and then disseminate those discussions to our readers.

Therefore, under 45 CFR 1602.2, we believe that we properly meet the legal qualifications as a “media requester” entity, and so we would need to pay only any duplication fees after the first 100 pages of material, and we should not need to pay any search fees or review fees.

Thank you for your consideration, and we look forward to your timely response within twenty business days, as the statute requires.

sincerely yours,

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

We will provide updates when we learn how NARA chooses to respond to our request.

Introducing the first-ever freely-available publication, online or otherwise, of the Mississippi Statewide Death Index! This record set covers deaths in the state of Mississippi from about November 1912 (although a few counties were slow to join in) through 1943. This record set was originally compiled by the Works Project Administration (WPA), as part of their incredibly important Historical Records Survey group.

Up until, oh, right now, the only place anyone could see or use this index was by visiting the Mississippi Department of Archives and History in Jackson, Mississippi in person, then tediously cranking through the faded and scratched microfilm rolls, or shuffling around microfiche sheets for some of the years. But now it’s all scanned and online and free to use from your own home, without restrictions or copyrights, forever!

And we at Reclaim The Records couldn’t have done this without teamwork: a dedicated genealogist who knew about the records and about his rights and reached out to us for help; two generous genealogy non-profits that helped us digitize and host these new materials; and a pool of awesome supporters and donors that enabled our work on this project. (This is you!)

Georgia Genealogist Gauges Guidelines, Gets Goods

Enter Christopher Smothers. He’s a professional genealogist based in Georgia, specializing in the Deep South and the Eastern Shore of Maryland — and a college student, studying history. Earlier this year, he reached out to us at Reclaim The Records over e-mail and wrote that he had been researching the laws and rules that had been keeping the Mississippi state death index restricted to the Archives in Jackson:

“I personally have family in Mississippi, and I can remember a time when I begin doing genealogical work and nothing was available for the region unless you went to Jackson. And I thought to myself this is unrealistic. I’ve been trying for years to communicate with someone who could release these records, however I did not know the correct terminology or legally how to go about obtaining access to them.”

What Chris also didn’t know is that everyone else had been trying for years to get those records out of the Archives, too, without success. Even when the Archives had let some organizations come in to photograph or scan other records, they still inexplicably held tight to the state death index. Other people reported that it was the state Department of Health — who claimed “ownership” of the index that was on file at the Archives — that was really holding up the show, making vaguely scary noises about ‘rules’ and ‘lawyers’ and ‘privacy’, even though all of the people in this death index were, of course, quite dead.

(We at Reclaim The Records are currently running four Freedom of Information different lawsuits against three different Departments of Health — two in New York State, one in New York City, and one in Missouri — so these stories do not entirely surprise us. We know what these agencies can be like.)

But whatever the holdup had been, it seems the time was finally right for a change, and this young genealogist pushing for his right to get copies of the records under the law was the pebble that finally launched the landslide. Chris knew about the Mississippi Public Records Act and Chris talked to the archivists and Powers That Be and eventually Chris made it happen.

So if you’re as excited as we are about these records finally going online, please make sure you send Chris a thank you, because honestly, he deserves the credit.

So the Archives formally approved the duplication of the microfilm master reels of the death index — which, it turns out, were kept in a giant underground records vault in Kansas, which sounds almost as cool as a giant records vault built into the side of a mountain just outside Salt Lake City. But Chris, as we mentioned, is still a college student. So this is the part where we at Reclaim The Records were fortunately able to step in and take the baton and run more laps in this relay race.

Because of the continuing generosity of all our amazing donors and supporters (you guys! thank you so much!) we were able to take over the financial details of the invoice. And we paid that underground records vault for the microfilm copies. And thus, for the low, low price of $480 (eight microfilms at $60 per film), plus $5 for freight shipping, plus the priceless tenacity of a genealogist who knew his rights under the law, thirty-one years of Mississippi history were finally liberated, forever.

Then we reached out to the extremely generous folks at the non-profit organization FamilySearch, who once again (again!) stepped up and agreed to digitize these microfilm reels for us, gratis. Thank you, FamilySearch! So we mailed them the films and a few weeks later we got them back in the mail, along with a hard drive full of newly digitized images.

Then we uploaded everything we got to another great non-profit, the Internet Archive, which doesn’t charge us for all the server hard drive space or bandwidth that hosts these very large image files. Thank you, Internet Archive!

?And now they’re all online! And here they are! ?

All about the Mississippi statewide death index

Okay, so the first thing you need to know is that some of the images are hard to read. There’s really no other way to put it. But most of the years are legible, and all of them are typed up or even printed out, so at least there’s no handwriting to worry about.

And probably within a year or two, all the usual genealogy websites will have a text transcription done from these scanned images, and then we can all just type in names and get search results, maybe even get automatic hints and leaves and tree matches and whatever other techie doodads they think up.

But for the moment, we’ve just got images. And as you can see, the format and the information recorded and the image clarity can vary from year to year, a lot:

For the parts of the index that had this white text on a black background, which was mainly used in 1925-1926 and then again in the 1930’s, we took the time to make “alternate versions” of each of those microfilms, boosting the contrast and brightness. So if, for example, the regular 1925 death index is too hard to read, you can try looking at the 1925 alternate version with lighter text, instead. You can also download every one of these images to your hard drive, if you like, and play with the image settings there.

(We should point out that a partial text-searchable version of this data does exist online, started by a volunteer genealogy group back in 2011. But they don’t have any of the images online, and only about 44,000 names done out of a few hundred thousand.)

(And we should also point out that because FamilySearch did the microfilm scanning, you can see and use the image copies on their website, too! But they don’t have the alternate/lighter versions we created for some of the years.)

I found a name, now what?

If you find a name of interest in the Mississippi state death index, you can then order a copy of the actual death certificate and learn much more information, including the person’s age at death, their parents’ names, their spouse’s name, the cemetery in which they were buried, and so on. And you have multiple choices for how to do this:

• If you need a certified copy of a death certificate, which is usually required for legal purposes, you can order one from the Mississippi State Department of Health, but it’s a little more expensive and a little slower than other methods, and you may need to prove your relationship to the deceased, even for a plain-paper “genealogy” copy.
• If you don’t really need a certified copy, you can get a scan or copy of the certificate directly from the Archives in Jackson — yes, the same place that finally coughed up the index. But they have a bifurcated rate for copies: all in-state reference requests have a $10 service fee, but out-of-state reference requests have a $35 service fee.[A brief digression: considering that the Mississippi Archives makes money by selling copies of death certificates, why were they so stubbornly resistant to providing copies of the basic index for so many years? How did they think researchers were supposed to magically know what records were available for sale in the first place? Arrrrgh.]
• Or you can just hire a friendly local Mississippi genealogist or researcher to go to the Archives and make the scan for you, and then you can skip the payment to the Archives altogether.
• Or you can fly to Jackson and visit the Archives and do the work yourself.

“The past is never dead. It’s not even past.”

Finally, we can’t help but mention that having worked with other states’ death indices for a few years now, there was something a little unusual about these Mississippi files that caught our eye.

It’s not that some years of the death index are alphabetical by surname while other years are sorted by the Soundex code of the surname; this is true, but it’s not that unusual.

No, it’s what fields they chose to extract from the certificates for the index.

Obviously one has to pick and choose the most important bits of a vital records certificate when one does the work of making an index or finding aid. For some years, the people who made the Mississippi death index gave the complete date of death, not just the year. For some years, they gave the sex of the deceased. For some years, they gave the age at death. For some years, they gave the marital status of the deceased. A small number of years, including 1930, even list the first initial of one or both of the deceased’s parents’ given names. And rarely they would fail to record the person’s given name, and would list women as Mrs. So-and-So, or very young children as Child Of.

But. They always extracted the surname and the death certificate number and the county name or code…and the race. They picked race to extract into the death index as more important than all those other fields that could help disambiguate between every John or Jane Smith in the state. And their field for race was not always a real multi-valued field, either; for some years, they just recorded either white or “non-white” [sic] as the options, to segregate the names even in the basic index, even in death.

(Other states’ twentieth century death indices generally don’t look like this.)

Mississippi’s native son William Faulkner wrote: “The past is never dead. It’s not even past.” And it’s sobering to look at these records finally online for the very first time in 2019 and see the proof right there, genealogy’s past showing up in genealogy’s present.

But we’ll end this newsletter with some words from genealogy’s future, and that would be young genealogists like Chris, who work to bring our records and our history right back out of the archives to everyone, for everyone. This is from that very first e-mail he wrote to us, when he reached out with the exciting news about possibly acquiring these records:

“Mississippi is just the start of the underserved communities of the U.S. whose records I want to help unearth so the descendants of the people who contributed to such a rich history will not forget who they are and the choices made in the past and the power of their choices moving forward.”

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! ?