Effects of the Changes in the Ohio Vital Records Laws: Confusion and Chaos

by Diane VanSkiver Gagel, First Vice President, OGS

 

In June of 2003, the Ohio Legislature passed HB 95 the Ohio Budget which included the following changes that affected the costs of vital records in the county boards of health departments as well as eliminating issuing uncertified copies from the same departments. It DID NOT eliminate accessing or viewing the records. The only restriction regarding vital records remains accessing the section of the records that pertains to medical information.

 

(Note: The reason provided for these changes has been identity theft; however, no explanation has been given as to how death certificates aid in identity theft. Also certified copies of birth records are required to obtain various legal documents like passports, so uncertified copies would not even be a factor. The real problem seems to be that institutions like banks, etc. often require a person s mother s maiden name for security purposes. If such institutions came up with a better method to provide security, then this would not even be an issue. It is clear that the government is attempting to shore up institutions who cannot or will not develop better security procedures to prevent identity theft.)

 

Wording of Law affecting Vital Records

Sec. 3705.23. (A)(1) Except as otherwise provided in this section, the director of health, the state registrar, or a local registrar, on receipt of a signed application and the fee specified in Section 3705.24 of the Revised Code, shall issue a certified copy of a vital, or of a part of a vital record in the director's or registrar's custody to any applicant, unless the vital record has ceased to be a public record pursuant section 3705.09, 3705.11, 3705.12, or 3705.15 of the Revised Code. The certified copy shall show the date the vital record was registered by the local registrar.

(2) A certified copy of a vital record may be made by a mechanical, electronic, or other reproduction process. It shall be certified as a true copy by the director, state registrar, or local registrar who has custody of the record and shall include the date of issuance, the name of the issuing officer, the signature of the officer or an authorized facsimile of the signature, and the seal of the issuing office.

(3) A certified copy of a vital record or of any part of a vital record, issued in accordance with this section, shall be considered for all purposes the same as the original and shall be prima-facie evidence of the facts stated in it in all courts and places.

(4)(a) Information contained in the "information for medical and health use only" section of a birth record shall not be included as part of a certified copy of the birth record unless the information specifically is requested by the individual to whose birth the record attests, either of the individual's parents or the individual's guardian, a lineal descendant, or an official of the federal or state government or of a political subdivision of the state charged by law with detecting or prosecuting crime.

(b) Except as provided in division (A)(4)(a) of this section, neither the office of vital statistics nor a local registrar shall disclose information contained in the "information for medical and health use only" section of a birth record unless a court, for good cause shown, orders disclosure of the information or the state registrar specifically authorizes release of the information for statistical or research purposes under conditions the state registrar, subject to the approval of the director of health, shall establish by rule.

(B)(1) Unless the applicant specifically requests a certified copy, the director, the state registrar, or a local registrar, on receipt of a signed application for a birth record and the fee specified in section 3705.24 of the Revised Code, may issue a certification of birth, and the certification of birth shall contain at least the name, sex, date of birth, registration date, and place of birth of the person to whose birth the record attests and shall attest that the person's birth has been registered. A certification of birth shall be prima-facie evidence of the facts stated in it in all courts and places.

 

Regarding the fees charged the law states as follows.

 

In addition to the fees prescribed under division (A) of this section or section 3709.09 of the Revised Code, the office of vital statistics or the board of health of a city or general health district shall charge a five-dollar fee for each certified copy of a vital record and each certification of birth. This fee shall be deposited in the general operations fund created under section 3701.83 of the Revised Code and be used solely toward the modernization and automation of the system of vital records in this state. A board of health shall forward all fees collected under this division to the department of health not later than thirty days after the end of each calendar quarter.

(C) Except as otherwise provided in division (G)(H) of section, and except as provided in section 3705.241 of the Revised Code, fees collected by the director of health under sections 3705.01 to 3705.29 of the Revised Code shall be paid into the state treasury to the credit of the general operations fund created by section 3701.83 of the Revised Code. Except as provided in division (B) of this section, money generated by the fees shall be used only for administration and enforcement of this chapter and the rules adopted under it.

 

For a full reading of HB 95 you can go to the following website:

 

Background Information and Update Since the Passage of the Bill

Prior to its passage, representatives from The Ohio Genealogical Society and the Ohio Historical Society discussed with the Ohio Department of Health the various aspects of the bill. During the OGS meeting, it was learned that the ODH composed the bill s language. Both OGS and the OHS expressed their concerns about the costs but protested the elimination of the uncertified copies. However, the elimination of the uncertified copies was maintained by the legislature.

 

To illustrate part of the confusion that has come out of this law occurred when a legislative aide to Senator Jeffrey Armbruster s Office was told by a person at ODH that OHS did not sell death certificates until 70 years after the person had died. However, this is untrue. Diana Patterson of the OHS microfilm section stated: We have the death certificates for Ohio from 1908-1944 that can be purchased. The cost is $10.18./roll. This consists of 973 rolls of 16mm microfilm and 42 pages of microfiche. This includes the index. The cost for the microfiche is 40cents/page. The death certificates [contains] 21 rolls of film to the index [which] covers 1908-1932/1938-44. The years for the index 1933-37 are on the 42 pages of microfiche.

 

Since the passage and signing of the bill, reports have been coming into OGS from individuals about how various local health departments have been interpreting or handling the changes in the law.

What follows are some accounts of what has been happening across the state. Mark Kassouf of the ODH stated he has sent numerous memos, statements, and directives to each health district, but the ones that do not want to play by the real rules are simply ignoring them.

 

Here is a breakdown of what has been reported as of July 16, 2003.

 

Huron County: On June 30th, the Huron County Health Department confiscated the birth and death record films at the Norwalk Public Library. This film had been purchased in 1999 from the Center for Archival Collections at Bowling Green State University by the Huron Chapter of OGS with the consent of the Huron County Health Department at a cost of $500.00. The Health Department stated they had been told by the State Board of Health to confiscate the films and then let the courts decide who owned them. As of this writing, the Huron County Board of Health does not plan to reimburse the Huron Chapter for their property.

 

Sandra McQuire of the ODH, when told of the Huron situation, stated she was unaware of these actions. She added that everything purchased should be returned and that since they are public records, they can be in libraries and that she did not have a problem with death records being available, but birth records are a whole different matter as they contain the entire certificate, not just the public portion. However, another ODH official Mike Carroll, the Assistant Legislative Aide for ODH, stated that the ODH did indeed ask the county departments to take the film at the Norwalk Public Library and two other libraries in southern Ohio. He stated that the reasons for the confiscation were 1. HB95 made uncertified copying illegal and the films were accessible to the public with no copying restrictions. 2. the films contained records of living people in that the law made them historical after 70 years after the person has died.

[From reading the law, it would appear that it prohibits Health Departments from making uncertified copies. It states nothing about the public making copies from other sources. The second point is not an accurate reading of the Ohio Public Records Law.]

 

Steve Charter, the reference archivist at the CAC, when informed of the situation, stated that the Health Department did not have the right to confiscate the film that has been purchased. The Attorney General s office staff considers this practice to be theft and that the BGSU legal counsel has been contacted about this situation.

 

On the local level, the Huron Chapter of OGS contacted the Norwalk Reflector and the Sandusky Register newspapers. They have also contacted the Huron County Prosecutor and were advised to send them a written statement that the Health Department had no authority to confiscate the material and ask the department to respond. The county prosecutor can then document on what authority the Health Department confiscated the Chapter s film.

Belmont County: Nobody seems to know where the original certificates are. They were in the Health Department, but neither the department or the County Commissioners claim to know where they are located. Their response was the historical society took them. The officials did not say which historical society [local or state] took them. The county probate court transferred their volumes of births and deaths [1867-1908] to the health department, and they are missing as well.

 

Logan County: The Health Department was telling applicants that they could make copies only for the person named on the certificate or next of kin. [This appears to be a violation of the Public Records Law.]

 

Fulton County: The Board of Health has a sign posted stating the new fees. When questioned the Health Dept. official on duty the week of July 14 stated that the birth and death records are public records and may be viewed by anyone.

 

Putnam County: The County Health Department retrieved their film on loan to the county library.

 

Marion County: An official at the local Health Department informed an applicant that he or she could not examine the vital records unless he or she purchased a certified copy. [This also appears to be a violation of the Public Records Law.]

 

Montgomery County: The Montgomery Records Center is refusing to make uncertified copies of Probate births and deaths although probate records are NOT covered by ORC Sec. 3705.

 

Fairfield County: According to the Fairfield County Registrar, Jane McGuire, the proposed plan
for access to public records will include the following:

Those wanting access to birth and/or death records for research purposes will need to make an appointment. They will need to provide the name on the record as well as the date of birth or death. The staff in Vital Statistics will NOT do any record searches without this information. Appointment times will be available each Tuesday of the month from 4:00 pm - 5:00 pm. There will probably be no more than 2-3 people able to make an appointment each week and the number of records a
researcher will be allowed to view will be limited. Please note that the registrar is interpreting the Public Records Act (Ohio Revised Code, Section 149.43) in her own way

 

The Ohio Public Records Act

 

The Ohio Public Records Act [PRA] has been mentioned several times in reference to the actions of some of the above county departments. What exactly does the law allow? The answer to many of our questions and our recourse to any violations can be found in the publication An Ohio Sunshine Laws Update, August 2002: The Public Records Act and the Open Meeting Act. This publication can be obtained free of charge from the Ohio Attorney General s Office by calling or writing the local office of the Ohio Attorney General.

 

What does the PRA allow?

 

The Act gives the individual four basic rights and a public officer has four responsibilities:

1. Prompt inspection of public records. Prompt means without delay and with reasonable speed, but this standard must be judged within the context of the circumstances in each individual case. And this standard also contemplates the opportunity for legal review. (p. 13 An Ohio Sunshine Laws Update).

2. Upon request, copies of public records within a reasonable time.

3. Upon request, copies by mail.

4. Copies on paper, on the same medium which it is kept, or any other medium specified, so long as is available as an integral part of the public office s normal business operations.

 

The public office cannot charge a person to inspect a record. The fee for copies is actual cost or the cost set by statute.

 

Who can request public records?

Any person, which includes corporations, individuals, and even other governmental agencies may request public records and does not have to be an Ohio resident. The request does not have to be in writing. (Motives for the request of certain personnel records have been deemed necessary by the Ohio Supreme Court.) A request may not be denied or delayed on the grounds that it would interfere with the operation of the public office. The Ohio Sunshine publication provides a list and explanation of those records that are exemptions to the public records law.

 

Remedies and Liabilities Under the Public Records Act for Improper Withholding of Public Records. [Taken from pp. 57-60 of Ohio Sunshine Update]

 

1. The State Attorney General does not have enforcement authority under the act. There are no criminal penalties or civil penalties for violation of the Act; however, a violation of the PRA may result in a public office paying the requestor s attorney s fees.

 

2. If a citizen feels that a public office has wrongfully withheld public records, the only remedy available is to file a petition for a writ of mandamus. Mandamus is a court action that basically asks a court to order a public office to comply with the law. The person who files the mandamus is called the relator, while the entity that is holding the records is called the respondent. To be entitled to mandamus the relator will have to show that an appropriate request for a public record was made prior to the filing of the mandamus action.

 

Mandamus does not need to be brought against the person ultimately responsible for the records[;] it needs only to name a person responsible. Where an official is under a legal duty to oversee a public body s records, the official is a person responsible. If an official responsible for records denies a public records request, no administrative appeal to the officer s supervisor is necessary before filing a mandamus action in court.

 

A mandamus is unique because it permits forum shopping it allows litigants to file mandamus in the court where they feel they are most likely to prevail. This means that a person may file in one of three courts: the local court of common pleas, the appellate court for that district, or the Ohio Supreme Court....

 

The complaint must specifically state the records that are being sought . . . The Public Records Act authorizes only attorney fees not compensation to pro se litigants, even when the pro se litigant is an attorney.

 

Suggested Steps to take if the Public Records Act is being violated.

 

1. Keep a written record of the incident which contains the date of request of a public record, the public office, i.e. probate court, the response of the public official, and the name of the public official.

 

2. Make the public official aware of the Public Records Act stipulations. If possible, obtain a written response from the public official for denying access to public records. If that is impossible, document the response of the public official.

 

3. Report the incident to the county prosecutor, who is a member of the county records commission.

 

4. If all else fails, file a writ of mandamus as outlined in the Ohio Sunshine Publication.

 

5. If the violation involves the County or City Boards of Health re: the new law, contact the Ohio Dept. of Health as well.

 

6. Provide the information to your local newspapers government or political reporters.

 

Further updates in the OGS Newsmagazine will be provided as the information comes in. Check the OGS website for the most recent information. In the near future on the OGS website, look for the voting record of the Ohio legislators on HB 95. Finally, if anyone has information on what is happening in other counties or updates on those mentioned, please forward them to OGS via email or standard mail.

 

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