“The fact that you exist should not be private.” says Alec Ferretti, a professional genealogist who specializes in helping people obtain Italian citizenship based on their ancestry.

Ferretti works for Reclaim the Records, a not-for-profit organization that’s using public records requests to put vital records related to births, marriages, and deaths in the public domain.

Recently, Reclaim the Records launched the Connecticut Genealogy Index, a database containing an index of hundreds of thousands of records of births, deaths, marriages, and civil unions that occurred in the state between 1897 and 2017.

But not all of those types of records are available for all years, in part because of limitations with the way records are collected by municipalities and the state, and—more importantly—because of a statutory 100-year embargo on access to birth certificates from the time they are issued.

The information in Reclaim the Record’s database largely came from Freedom of Information Act (FOIA) requests for birth, death, and marriage indexes filed with the Department of Public Health (DPH). Indexes are different than the document you get from the state or a local registrar when you ask for a certified copy of a vital record.

For births, Ferretti says indexes contain “really just a name, date of birth, and town of birth.” Two of those—your name and date of birth—are unquestionably public information and can be found on any number of documents obtainable through FOIA.

Yet, DPH officials are withholding birth index data requested in a five-year-old FOIA request from Ferretti, arguing it’s exempt from FOIA under state statute. DPH has turned over birth index data before, but for years that fall before the hundred-year cutoff.

The Freedom of Information Commission (FOIC) disagreed and ruled, as it has on previous occasions, that birth indexes are distinct from birth certificates and are not exempt from FOIA disclosure.

But DPH is still fighting the order, dragging out a process that has already lasted over five years due to the COVID-19 pandemic and the FOIC’s handling of complaints filed during that time.

Birth records are treated differently under Connecticut law than marriage and death records, which, according to Ferretti, are fully public.

“There’s really no argument to be had. The law for birth is a bit more complicated. The certificates themselves are private for 100 years, and there’s an exception for professional genealogists.” Ferretti said.

Certified records of births, deaths, and marriages that are at least 100 years old can be purchased by any adult. But access to births, deaths, and marriage records that have occurred within the last 100 years is more limited.

Access to records from the last 100 years—where there’s a higher possibility the person in question is still living—is harder to obtain. Certified death certificates can be obtained by anyone who is 18 years of age, but a spouse or next of kin needs to prove their identity to obtain a copy containing a Social Security number (SSN). There’s a similar rule for marriage certificates: any adult can purchase them, but only a spouse can obtain a copy with a social security number.

Birth certificate access is more limited. They can only be obtained by the individual whose birth is recorded, a parent or legal guardian for those under the age of 18, or an attorney representing that individual. They can also be obtained by a child, grandparent, spouse, conservator, an agent of the government, or a member of a genealogical society recognized by the state.

Under state statute, “a member of genealogical societies incorporated or authorized by the Secretary of the State to do business or conduct affairs in the state” can access most vital records, regardless of their relationship to the individual.

That special access extends to “all vital records in the custody of any registrar or vital statistics, including certificates, ledgers, record books, card files, indexes and database printouts” unless they contain SSNS, as access to SSNs is prohibited under federal law, or contain other confidential information such as adoption information, paternity, or gender changes.

Members of genealogical societies are also permitted to take notes, purchase certified copies of vital records, and “incorporate statistics derived from such records in the publications of genealogical societies.”

This special access for genealogists dates back to 1996, when the legislature adopted an amended bill that professional genealogist Dr. Robert Rafford is recorded in a legislative document as saying would give “relief to the defenseless genealogists who are being turned away by officials taking the law into their own hands.”

DPH opposed the bill, as did some genealogists, on the grounds that the original bill language fined town clerks for failing to provide them with vital records. That piece was stripped from the bill before final passage.

In addition, the bill also made vital records more accessible to those who might need them, adding a spouse, children, and the grandparents of a minor to the list of people who could obtain a copy of a birth certificate without a court order. 

According to the Connecticut State Library, there are currently 14 different genealogical societies authorized to do business in the state, many specializing in either ethnicity or regional geography. 

According to Ferretti, the genealogists’ exception is a “bullshit requirement.” “It just means you paid $18 dollars to an organization and got a card.” he said.

Ferretti’s FOIA request to DPH dates back to August 30, 2020. On that date, he asked for copies of the state’s birth index from 1920 to 2020. DPH acknowledged the request on September 4, 2020. On February 1, 2021, Ferretti asked about the status of the request. On February 3, 2021, DPH denied the request.

They cited the vital records statutes that restrict certified copies of birth certificates and fetal death records from the last 100 years to the individual whose records they are if they are 18 or over and to a limited list of eligible people. DPH also argued that they do not maintain records for all the years Ferretti was seeking.

Ferretti appealed to the FOIC on February 4, 2021. 

At issue in the complaint was the difference between copies of birth certificates and fetal death records, which the statute addresses, and indexes, which the statute is less specific about. While the statute specifically limits access to birth, death, and marriage records, it only references indexes in the context of members of genealogical societies recognized by the state having full access to them.

While birth certificates and fetal death records contain detailed information, the index is essentially an alphabetical list of a vital event—be it births, deaths, or marriages—that occurred within a given time period.

The state statute on indexes directs registrars of vital statistics to “keep alphabetically arranged separate indexes for each group of vital events” and enter into them “the name of each person whose birth, marriage, death or fetal death is recorded by the registrar.” DPH’s registrar of vital statistics testified during a hearing on the complaint that the birth index “is generally comprised of names, dates of birth, and locations of birth.”

Ferretti’s was not the first case the FOIC has handled that addressed the difference between vital records indexes and actual birth, marriage, and death certificates.

In three other decisions, issued in 2012, 2013; and 2015, the FOIC found that indexes are “not subject to the same statutory disclosure restrictions as birth, marriage and death certificates.” 

In its 2013 ruling, the FOIC found DPH unreasonably denied Lee Rowley, who visited DPH’s office to view birth, marriage, and death indexes as part of research he was doing into his family tree, access to those records. 

DPH refused to allow Rowley to view the records because he was not a member of a genealogical society. The FOIC found that while state statute gives genealogists full access to both certificates and indexes, it does not authorize them to deny the “right to inspect the indexes in a reasonable manner.” 

Those prior decisions formed the basis of the FOIC’s decision finding in Ferretti’s favor that the birth indexes he was requesting were not exempt from disclosure and that DPH violated FOIA when they denied his request.

Also among the issues in the case was DPH’s access to its own records. For the years 1920 to 1947, DPH testified that the birth indexes were contained in a FoxPro database, which contained a catalogue of birth records contained on microfilm. FoxPro is a database management system, which was acquired by Microsoft in 1992. The company stopped supporting it around 2015.

A footnote in the FOIC’s decision notes that DPH didn’t “begin maintaining the statutorily required indexes contemplated [in statute] until 1948-19” and that birth certificates from earlier years are on microfilm.

During the hearing, DPH testified that while they could previously export an index from the database—and had previously done so for Ferretti for a separate request for the birth index from 1917—they could not do so for the current request because the “staff who had knowledge and expertise to access the FoxPro database was deceased, and the remaining staff of the respondents were unable to export from the database.”

DPH also testified that the database was “archaic,” “old,” and “sunsetted” and said they “were concerned that any data extraction could “corrupt” a file or impede [the agency’s] ability to respond to customer service requests for certified copies of birth records.”

“It’s Star Trek technobabble.” Ferretti told Inside Investigator. “Like if they used it, they might actually lose it. They never actually inquired with any actual IT people. As much as it’s an old database, FoxPro exists.”

 Ferretti says this assessment was proven correct when he submitted another request last year and DPH “unceremoniously” sent roughly six years of the data contained in the FoxPro database.

The FOIC concluded that the indexes from 1920 to 1947 were public records and that, as Ferretti had testified that he would be willing to “cover the expense that may be incurred by [DPH] in retrieving the requested records, should an outside professional need to be engaged,” the agency had not met its burden for demonstrating it couldn’t “reasonable” provide a copy of the records.

The FOIC also found that DPH maintained records for the other years Ferretti was seeking.

The FOIC decision, adopted unanimously at the commission’s September 10 meeting, ordered DPH to turn over the birth indexes from 1948 through 2020 within 15 days. Within 30 days, DPH was ordered to “investigate the feasibility of receiving responsive records” from their FoxPro database for the years 1920 to 1947 and to consult with the Department of Administrative Services’ Bureau of Information Technology Solutions (BITS).

If BITS or another consultant were able to access the records, the commission ordered DPH to turn them over to Ferretti within 15 days of the date of their retrieval. If not, DPH was ordered to provide an affidavit stating this was the case within 60 days of the commission’s decision.

But to date, even though the deadlines set for DPH to turn over records in the FOIC’s decision have passed, Ferretti is still waiting for records because DPH has appealed the finding in Superior Court. Statutorily, agencies have 45 days after a finding against them to appeal. The FOIC generally does not enforce orders that have not been followed within that timeframe. 

At the base of DPH’s objection is a question about whether the FOIC, which received the complaint five years before it issued a ruling, had jurisdiction.

Normally, the FOIC has a year from the date a complaint is submitted to act upon it and issue a decision. But Executive Order 7M, issued by Gov. Ned Lamont on March 25, 2020, suspended that time limit, giving the commission an indefinitely longer period of time to hear and dispose of cases while the COVID-19 pandemic either shut down or slowed many government services, including the in-person hearings the FOIC usually holds on complaints.

But, while the commission’s capacity to dispose of cases was disrupted due to the pandemic, the number of new cases coming in didn’t slow down.

Connecticut’s state of emergency ended on May 11, 2023, along with the federal state of emergency, and with it so did all remaining emergency measures Lamont enacted.

For the FOIC, this meant the year-long time period the commission has to act on complaints was back in effect for all newly filed cases.

But less clear was the impact on cases that had been filed or were in progress during the period where that time limit was suspended.

According to Russell Blair, the FOIC’s Director of Education and Communications, the commission has not adopted a “specific policy” for handling pandemic-era cases but “has been continuing to tackle that backlog while making sure that we are meeting all the other statutory and court deadlines we must abide by.” 

As a result, a number of complaints, including Ferretti’s, are receiving decisions four- or five-years after they were submitted.

Not only has this left complainants frustrated with the delay, but it’s given a number of state and local agencies whose actions were found to violate FOIA the opportunity to argue that the commission no longer has jurisdiction over the complaint.

In Ferretti’s case, attorney Elizabeth Bannon, arguing on DPH’s behalf, objected to the FOIC’s ruling not only on substantive grounds, but primarily on jurisdictional grounds.

During a September 10 FOIC meeting where commissioners adopted the decision in Ferretti’s favor, Bannon argued that because Ferretti made the request in his capacity as a professional genealogist and not as a member of the public, the vital records statutes, and not FOIA, governed access to the records he was requesting. As a result, Bannon claimed the FOIC didn’t have jurisdiction over the complaint.

Additionally, Bannon argued that while EO 7M “tolled” the one-year limit on the disposition of complaints, when the public health emergency ended, the FOIC had a year from that date to issue a decision. Because it had been longer, Bannon argued the commission did not have jurisdiction.

In all those cases that have been disposed of so far, the FOIC has maintained it retains jurisdiction over the cases, but has not ruled on whether the expiration of the COVID-19 emergency actions began a new one-year time limit on disposing of them. Instead, the FOIC has suggested this is a legal point that would better be adjudicated in the courts. As the number of outstanding cases from COVID dwindle—there were seven outstanding at time of writing—commissioners have also felt less need to address the issue definitively. Commissioner Christopher Hankins referred to those cases as “vestigial tails” during discussion of Feretti’s case on September 10.

Ferretti said the long-time frame is one of the reasons he submitted another FOIA request to DPH last year. Had the FOIC reached an earlier decision on his request from 2020, Ferretti said he might have withdrawn the new one. But DPH ended up turning over the records, negating any decision needing to be made. 

While the FOIC ruled in Ferretti’s favor, DPH has since challenged the ruling in Superior Court. A large part of DPH’s argument stating the FOIC’s order cannot be enforced is dedicated to the question of subject matter jurisdiction.

“By the clear and unequivocal terms of Executive Order 7M, the suspension of the one-year statute of limitations…for the OIC to both hear and decide complaints ended on May 13, 2023 when the public health and civil preparedness emergency ended.” the complaint states. “The FOIC’s failure to both hear and decide Ferretti’s complaint within one-year of the end of the public health and civil preparedness emergency deprived it of subject matter jurisdiction to do so.”

The appeal does not address DPH’s ‘on the merit’ objections to Ferretti accessing the records; it is focused entirely on the jurisdictional issue.

On October 16, the same date DPH filed the complaint, the agency also submitted a motion seeking to stay the FOIC’s order for the production of documents. The motion argues DPH has “a good faith basis to believe” its appeal will prevail, which is “based in both federal and state law governing the tolling of statutes of limitations, specifically as it pertains to Governor Lamont’s issuance of executive orders during the Covid-19 pandemic and resulting public health and civil preparedness emergency.” 

As with many cases where access to public issues is at issue, who should have access to vital records is, at its core, about where the line falls between the individual’s right to privacy and the public’s right to know.

Unquestionably, there is no public interest in the disclosure of sensitive personal information like SSNs, which can be found on vital records. But is there a privacy argument for withholding a person’s name, date of birth, and place of birth, and does that change based on how long a person has been deceased? Is there, for instance, a compelling privacy argument for protecting that information for someone who was born ninety-nine years ago as compared to someone who was born a hundred years ago?

Marriage and death records, too, don’t enjoy the same level of protection 

Much of the information contained in birth indexes, particularly a person’s name and date of birth, is easily obtainable through other public records. For example, ballot access petitions and political donation forms are publicly available and contain a person’s name and address at the time they were signed. There’s arguably a much more exigent privacy argument in withholding that information, yet anyone can comb through campaign contribution filings in the state’s database.

So, why might state officials be so dead-set on shielding birth indexes from the semi-recent past from public view?

Though personal privacy stands as the most obvious reason, DPH has not specifically articulated a strong privacy argument in its defense of its denial of Ferretti’s request, instead falling back on statutory arguments that the indexes are exempt from disclosure.

“What we’re saying though, is not that these documents are absolutely confidential, it’s that the language is very clear in these statutes as to how persons that belong to these eligible classes can access the information.” Bannon said during a hearing on Ferretti’s complaint. She argued that while the statute allows professional genealogists access to records, it is limited: to view records in-person at DPH’s office during normal business hours and to view underlying records or ask for copies and other limited actions specified in statute.

Bannon addressed the privacy issue briefly during her closing arguments in the hearing on Ferretti’s complaint.

“I think it’s important to acknowledge that these indexes are created from information on birth certificates that otherwise are confidential. Again, people in eligible classes such as Mr. Ferretti can request certified copies of underlying records, but this is information that we heard testimony could contain a mother’s maiden name and there are other statutes and even the Connecticut Practice Book that says that’s actually personally identifying information and the Practice Book requires if that’s inadvertently disclosed publicly, it needs to be sealed. So, there’s even protections for some of that information.” Bannon said.

To turn the issue on its head: why are projects like Restore the Records important? Birth indexes arguably don’t reveal that much information that can’t be found elsewhere, so why does it matter if they’re publicly accessible?

“Say you don’t know where your great-grandma was born, somewhere in Connecticut in 1941. Right now, you have to order records from the state, wait for them to search or come back with records, or order them directly from the town.” Ferretti said.

Making birth indexes public has two primary benefits. According to Ferretti, the last time he tried to obtain records from the DPH’s state offices, there was a 13-month backlog. That’s a long time to wait for information.

Also, according to Ferretti, many older records may not be entirely reliable and contain misspellings of names, which can mean people researching their ancestors won’t be able to find records.

“If they’re publicly available, [genealogists] can research them ourselves. It allows us to do more creative things than the government can do. We can identify a record, then write to the town clerk and have them in two days.” Ferretti said. 

Underlying the issue of where the line between individual privacy and the public’s right to know is public sentiment that, according to Ferretti, is not coherent.

“Many people are really uncomfortable with a birth certificate being a public record but presume it is a public record.” But birth certificates, unlike the indexes, are not.

“There’s a dual idea of birth/marriage/death data [people] have without formulating a real opinion. No one’s really thought about it for more than 10 seconds.” Ferretti said.

It’s not the only type of record where evidence suggests there’s no public consensus on what should be public and what should be private.

Inside Investigator has previously reported on how routine permits people might need to obtain from the government in order to go about their daily lives, including parking permits, can be FOIA’d to obtain their addresses and other personally identifiable information.

The issue is not necessarily that those addresses are available, as there are other public documents on which addresses can be found, but that, unlike a building permit, it’s not necessarily the type of document someone would expect to ever be public-facing. 

And for individuals who are wary about their privacy or need to hide personal information for their own security, that poses a problem as they can’t necessarily take safeguard measures. 

Additionally, the addresses of various public officials are exempt from disclosure in those same documents, on the grounds that disclosing them could create a safety threat. But members of the public aren’t offered that same protection.

“My position is, it all should be public. That’s how it works in a lot of commonwealth jurisdictions.” Ferretti said. “The societal value is pretty big, in diffuse ways. There are so many reasons understanding who people are is important.”

“When you get married, the idea in my view is you are being granted a license by government to receive certain public benefits. If that’s not a public record, we can’t confirm who’s married and who’s not, if a partner is already married.” Ferretti continued. “Marriage stems from public tradition, death is the same way. There’s a tradition of vital events being public.” 

According to Ferretti, events like the AIDS crisis and the advent of the Internet have made people afraid of information being out there.

“The fact that you exist should not be private. It’s a fiction to say so in the first place.” Ferretti said.

But public agency officials might not be pursuing so seemingly a noble cause as protecting privacy when they fight to keep vital records hidden from the public.

The National Association for Public Health Statistics and Information Systems (NAPHSIS) is a nationwide nonprofit that represents “state vital records and public health statistics offices across the United States, including all 50 states, five territories, New York City, and the District of Columbia,” according to the group’s website.

NAPHSIS is involved in a number of activities, including advocating for modernizing the collection of vital records, issuing guidelines to that end, and operating state-managed registration systems that document vital events.

But they also lobby and have written model legislation, The Model State Vital Statistics Act.

“The reason I care is because one of the 35 things they do is advocate for closing down access to records. All the laws passed in the last few years on vital records come from them. And while they try to close access down for privacy reasons, they then turn around and sell data to companies, sell electronic access to vital events.” Ferretti said. 

He described it as a centralization effort, where states all cede records access to a central look-up portal. “You have to apply to be given access.” Ferretti said. “It’s allowing private corporations access to data while they’re lobbying to closing off access to the public.”

But the good news is Connecticut’s vital records are actually relatively easy to access. While there’s a 100-year embargo on birth certificates, marriage and death records are open regardless of their date. That’s not true in other states. In fact, there’s actually very little similarity in vital records access between states. 

In New York, for example, where Ferretti has also fought for vital records access, you need a court order to obtain a certified copy of a vital record dating back to the 1880s. In other states, certified copies of recent births are obtainable.

Connecticut is also unique in that DPH retains custody of vital records forever. Health departments in other states don’t make records available for inspection, but “anyone with a research card has the run of” DPH’s archives according to Ferretti. 

Because of that, there’s less of an incentive to go to an external archive—which, to date, may have helped keep Connecticut from entering an agreement with Ancestry, which has increasingly been entering into data-sharing agreements with states and towns. Generally, Ancestry gets data exclusivity for several years and spends money to clean it up before turning it back over. While underlying records are still available, digital access gets routed through Ancestry—complicating access for those who don’t want to give personal information to genealogic companies whose DNA services have been tied to sharing data with third parties and law enforcement.

“The underlying paper records are public records. The info isn’t hidden forever, but the usable format—the scanned index that Ancestry created—that’s only available behind Ancestry’s paywall.” Ferretti said.

And that’s another wrinkle to the debate about where to draw the line between privacy and public access: how can a government authority credibly restrict public access to vital records on the grounds that they are protecting privacy while also turning information over to a private company?

Ferretti has been embroiled in a three-way lawsuit with the state of Pennsylvania and Ancestry after the state’s health department denied a public records request he filed for copies of all documents that had been scanned as part of an agreement with Ancestry.

According to the lawsuit, the state entered into the agreement rather than pay the approximately $300,000 annual costs to maintain a digitized registry. Pennsylvania’s health department not only maintained it had no responsive records but claimed as part of its defense that all the records Ferretti was seeking were exempt from disclosure because copying the records and metadata it provided to Ancestry would be a breach of contract. They also argued they did not have access to the records because they were maintained by Ancestry. 

While Pennsylvania’s open records office ruled in Ferretti’s favor, the decision has since been appealed.

“A noteworthy element of all this, health departments, even ones where records are generally available to the public—with stupid caveats—are really finicky about giving out free access to stuff. Health departments have this institutional idea that ‘these are our records, they’re private. No, you annoying genealogist, you can’t have whatever you want.’” Ferretti said.

And, that obviously has implications for the broader public who turn to genealogists’ expertise to help navigate record sets that are old and not always straightforward, as well.

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