In ‘drastic’ change, Baker wants birth, death records secret in most cases

Marriage records would only become publicly available on the couple’s 90th anniversary

A birth certificate.Shutterstock

Governor Charlie Baker is seeking to dramatically restrict who has access to Massachusetts birth records, death certificates, and marriage notices under a proposal that, if adopted, would exempt many of the documents from public view for a virtual lifetime.

Copies of the documents, known as vital records, can currently be viewed or purchased by the public, with few exemptions, at local town or city halls and the state’s records registry, making Massachusetts one of the country’s most transparent states in terms of access to birth or death certificates.

Baker’s provision would reshape state law to allow only those requesting their own records to view or get copies, albeit with a few exceptions: a person’s parent or attorney, for example, or by a judicial order. The change, his office said, would better shield potentially sensitive personal information and mirror “national best practices."

In most cases, those records would then become publicly available 90 years after a person is born or married, and 50 years after a person’s death, according to the proposed language, which Baker included in a package of little-noticed sections targeting vital records in the state budget plan he unveiled last week. Another change would require the certificates to include only “information minimally necessary to establish fact of birth, death or marriage.”

The proposal — which would need legislative approval — provided new kindling for the debate over how to best balance the public’s right to access government records with a citizen’s privacy.

Attorneys and open-records advocates, many of whom were surprised by the proposed change, said it would radically scale back access to records that could help identify health trends, boost genealogical research, and allow reporters to fact-check basic details.

“Common sense tells us that some of these records may be useful for academic research, for perhaps investigation in criminal cases, perhaps in investigations by the news media,” said Jeffrey J. Pyle, an attorney who specializes in First Amendment law at the firm Prince Lobel.

The change, Pyle said, would mark a “rather drastic” shift in how the state has traditionally provided access to birth or death records, which can touch virtually every resident in the state.

The documents have provided valuable insight in the past. For example, long before the state began regularly releasing data on opioid deaths, The Enterprise newspaper of Brockton reported a series of stories in 2007 examining the epidemic’s growing toll, in part, by reviewing local death certificates in 28 cities and towns.

“I’m certain we’re going to try to oppose this,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “If certain kinds of information are being taken from public records for nefarious ways, let’s address them as specifically as we can — instead of throwing the baby out with the bath water.”

State law currently allows the public to view or order copies of vital records for a fee, including through the state’s Registry of Vital Records and Statistics. It includes some exemptions, such as the birth certificate of a child born out of wedlock.

Through the governor’s proposal, said Sarah Finlaw, a Baker spokeswoman, the state would be aligned with recommendations from the National Association of Public Health Statistics and Information Systems, a nonprofit that represents state vital records offices and whose mission includes promoting ways to “protect individual identity.”

The proposal also would still provide public access to other records the state’s Department of Public Health maintain, such as an index of people who have died.

The proposal “further protects sensitive information from identity theft and fraud, but does not prohibit access of public information," Finlaw said.

Several attorneys, however, questioned its timing.

In June, the Supreme Judicial Court had instructed state agencies to broaden their understanding of the “public interest” when deciding requests under the state’s public record law. The decision was in response to a Globe lawsuit seeking millions of copies birth and marriage certificates — the very type of records to which Baker now wants to narrow access.

Both the Department of Public Health, which rejected the Globe’s 2014 request for electronic versions of the 7 million records, and a lower court judge who upheld the denial both had raised privacy concerns, arguing that data like birth records could inadvertently lead to medical information becoming public.

But the SJC ruled that while the request for databases with identifying information about millions of citizens may elevate the privacy interest, a request for an individual record does not.

Baker’s proposal doesn’t seek to specifically change public records statute, but “we’re dealing with withholding individual certificates and records, which relative to that ruling, strikes me as even more concerning,” said Justin Silverman, the executive director of the New England First Amendment Coalition.

“There certainly are privacy considerations, but I would rather see those considerations made on a case-by-case basis rather than have a law that wholesale exempts all of these records from disclosure," he said. Plus, he added, "Why do it now?”

Baker aides said the proposal was not related to the high court’s ruling, but they did not answer questions of what prompted it.

Barbara J. Mathews — president of the Massachusetts Genealogical Council, which describes itself as a records access watchdog — said the proposed language would overturn access to vital records that Massachusetts has provided since 1641.

“There is no reason to back off from it,” she said, arguing that personal data is more vulnerable when given to credit card companies or within digital health records than it is in physical birth certificates. “That’s not where people lose their consumer identities anymore.”

Massachusetts already has a checkered reputation in providing access to records. It’s the only state in the nation where the Legislature, judiciary, and governor’s office all claim to be completely exempt from state public records laws. And a legislative panel created to study expanding the public records law disbanded at the end of 2018 after failing for two years to reach an agreement.

Baker signed a bill in 2016 that strengthened the public records statute. But other changes have thinned transparency, including a 2014 law reshaping the state’s domestic violence law that, among many changes, shields the identity of alleged domestic abusers until a case lands in court.

State-level approaches to who can view vital records also fall across a wide spectrum. Rhode Island, Alaska, and Idaho generally restrict access to birth records or make them confidential until 100 years after a person is born, according to the Reporters Committee for Freedom of the Press, which tracks law changes across the country. In Alabama, it’s 125 years.

Other states, such as Maine and Mississippi, include language allowing access to a person who has a “legitimate” interest in the record.

But in Ohio, birth records are considered public, as they are in California except “those parts which contain medical and family information," according to the Reporters Committee.

In Vermont, the public can access the state’s vital records, though a law took effect in July restricting certified copies of birth and death certifications to family members, legal guardians, “certain court-appointed parties or their legal representatives.”

Massachusetts, at least for now, is considered one of the more transparent states when it comes to accessing birth, death, or marriage records, said Adam A. Marshall, a staff attorney for the Reporters Committee.

Baker’s proposal would change that, and should require “substantial justification," Marshall said. “The proponents of opacity need to make their case to the public."