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May 8, 1998

Ms. Judy Cwiklinski
869 Spring Mills Road
Whitesville, NY 14897

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence, unless otherwise indicated.

Dear Ms. Cwiklinski:

Your letter of April 18 addressed to Governor Pataki has been forwarded to the
Committee on Open Government. The Committee, a unit of the Department of State, is
authorized to offer guidance concerning public access to records, primarily under the
State's Freedom of Information Law.

You expressed concern that the Steuben County Clerk "is taking it upon herself to try
and make un-available certain public records, and has threatened confiscating certain
holdings of the Steuben County Historical Society." To learn more of the matter, I have
spoken with a number of present and former County officials, and copies of this response
will be forwarded to them in an effort to enhance understanding of and compliance with
law.

First, although the Freedom of Information Law pertains generally to access to
government records and the fees that may be charged for copies of records, provisions of
the Public Health Law deal specifically with birth and death records and fees for services
rendered relating to searches for and copies of those records; the Domestic Relations Law
includes provisions pertaining to marriage records. In brief, º4173 of the Public Health
Law permits the disclosure of birth records by a registrar only upon issuance of a court
order, or to the subject of the birth record or the parent or other lawful representative of a
minor. Similarly, º4174 of the Public Health Law limits the circumstances under which the
Commissioner of the Department of Health or registrars of vital records may disclose
death records and specifies that those records are not subject to the Freedom of
Information Law. As such, birth and death records are generally confidential and exempt
from the disclosure requirements found in the Freedom of Information Law. Section 19 of
the Domestic Relations Law pertains to marriage records maintained by town and city
clerks and provides that some aspects of those records are available to the public, while
others may be withheld unless there is a showing of a "proper purpose" that would justify
disclosure.

Second, in general, registrars of vital records are officials of cities, towns and villages
designated by the governing bodies of those municipalities. Unless there is special
authorization conferred by º4120 of the Public Health Law, neither a county nor a county
clerk performs a legal function in relation to the maintenance of or access to vital records.

Third, the Public Health Law includes provisions that deal directly with genealogical
records. Specifically, subdivision (3) of º4174 refers to searches for and the fees for
records sought for genealogical or research purposes that may be imposed by "any person
authorized" by the State Commissioner of Health, i.e., a registrar designated in a city,
town or village. That provision states that:

"For any search of the files and records conducted for authorized
genealogical or research purposes, the commissioner or any person
authorized by him shall be entitled to, and the applicant shall pay, a fee
of ten dollars for each hour or fractional part of an hour of time for
search, together with a fee of one dollar for each uncertified copy or
abstract of such records requested by the applicant or for a
certification that a search discloses no record."

Further, the Commissioner of Health has promulgated "Administrative Rules and
Regulations" pertaining to genealogical research, and enclosed is a summary of those
provisions that have been obtained on your behalf.

According to the summary received from the Department of Health, birth records need
not be disclosed unless the subject of the birth record is known to have been deceased
prior to 1924; death records need not be disclosed regarding deaths occurring after 1949.
The summary also includes a restriction regarding the disclosure of marriage records.
However, in an opinion recently rendered by this office with which the Department of
Health has agreed, it was advised that basic information contained in marriage records,
such as the names of the parties, the dates of a marriage or marriage application, the
duration of the marriage and the municipality of residence of licensees should be made
available to any person, unless a request is made for commercial or fund-raising purposes.
More intimate information would only be disclosed upon a showing of a "proper purpose."

It is my understanding that a former County Clerk or Historian acquired copies of vital
records from the municipal registrars in the County and developed an index to the records
in order to facilitate access by genealogists and perhaps others. The records were stored
in the office of the County Clerk because the County Historian did not have an office or
building in which they could be stored. When a facility was made available to the County
Historian approximately nine years ago, the records were moved from the office of the
County Clerk to the new facility.

It is emphasized that there was never any legal obligation on the part of the County
Clerk to acquire or maintain the records; they were merely stored in that office for
purposes of convenience.

Having discussed the matter with the current County Clerk, Ms. Judith Hunter, she
indicated that the County has only death and marriage records. As stated earlier, some
elements of the marriage records are generally public; it was suggested to her that other
aspects of those records, such as the ages of license applicants, the names of their parents,
and similar personal information be deleted prior to disclosure, unless a proper purpose
has been demonstrated. With regard to death records, it is my understanding that some
are copies of records transmitted by local registrars to the County; others are derived from
public sources, such as published obituaries, headstones, and the like. Insofar as it can be
ascertained that death related items were obtained from public sources, I believe that those
items would be available to the public. Similarly, to the extent that it is known which
references to deaths were derived from official death records less than fifty years old,
based on provisions of the Public Health Law and Administrative Rules and Regulations
cited earlier, those records should in my view be kept confidential or deleted from the
database. If it cannot be determined whether references to deaths were derived from
public sources as opposed to confidential records, to ensure that confidentiality laws are
not breached, I believe that such references regarding deaths occurring less than fifty years
ago should be considered confidential. Further, to ensure compliance with confidentiality
statutes, it was suggested to the Clerk that the County acquire items regarding deaths
occurring within fifty years only from public sources.

Lastly, I note that the receipt by the County Historian of death records from the legal
custodians of those records years ago may not have been inconsistent with law, for the
provision requiring the confidentiality of those records is the result of an amendment that
became effective in 1990. Consequently, the death records that are now confidential by
statute might validly have made available to the County prior to 1990.

I hope that the foregoing serves to clarify your understanding of the matter and that I
have been of assistance.

Sincerely,


Robert J. Freeman
Executive Director



RJF:tt
Enc.
cc: Hon. Judith Hunter, County Clerk
Daniel O'Donnell, County Administrator
Peter Carucci, Bureau of Vital Records, Department of Health