In 2020, while Americans were mired in COVID-19 lockdowns, Reclaim the Records was in the courtroom scoring a major legal victory for genealogists, historians and researchers.
For years, Reclaim the Records battled a defiant Missouri Department of Health and Senior Services (MDHSS) who resisted making public records (specifically birth and death data) available in accordance with Missouri state law.
This Freedom of Information/Sunshine Law case reads more like a conspiracy novel than an open records request.
The storyline goes something like this: small nonprofit fights back against big government whose officials hatch a “Secret Plan” to thwart access to the public’s data. No, this isn’t fiction, its a true story.
The plot only thickens as you read the hundreds of pages of sorted details, which culminated in a records retrieval estimate of $1.49 million; hourly staff rates more than double allowed under state law; denial of legitimate open records requests; and then the concoction of a “Secret Plan” by state officials to thwart access to the records in this case, as well as to all future requests. It was a plan officials meticulously implemented and lobbied for in the Missouri statehouse. (See a summary of the case below or visit Reclaim the Records’ website to view the documents.)
The final chapter in this story is a blistering rebuttal against MDHSS for their intentional wrongdoing. In the ruling, the judge ordered MDHSS to provide Reclaim the Records with the digital data they requested, including records of all persons born in Missouri between 1920 and 2015; and persons who died in the state between 1968 and 2015. They were also ordered to pay the plaintiff’s legal fees and $12,000 in fines for violations of the law.
Now, Reclaim the Records is working with the digital files to make the data within them accessible to the public for free. Their first release is the Missouri Death Index, 1968-2015, consisting of 2,598,482 records.
Summary of the Legal Case
In February 2016, Reclaim the Records e-mailed two Missouri Sunshine Law requests to the MDHSS. One request was for Missouri birth listings for the period January 1, 1910, through December 31, 2015, while the second request was for Missouri death listings for the same period.
On June 24, 2016, Reclaim the Records received a cost estimate of a shocking $1.49 million from the state agency for providing only a digital index of the records, not the actual death and birth certificates. In response, Reclaim the Records retained the services of an attorney who informed the state agency that the $1.49 million cost estimate violated the Missouri Sunshine Law, which expressly provides that the only allowable charges are the actual time it takes a staff member to retrieve the records from the database. Subsequently, it was revealed that MDHSS maintained the requested data on a computer database; and they dramatically revised their cost estimate from $1,464,973.92 to $5,174.04.
The “Secret Plan”
While MDHSS staff and Reclaim the Records’ attorney continued discussions over which record search methodologies could be used to reduce the retrieval costs, a “Secret Plan” was hatched by state officials.
After consulting with a former State Archivist, state officials cooked up a scheme to deny Ms. Ganz’s requests and force Reclaim the Records to take MDHSS to court, and then use the delay to get the Missouri Legislature to change the Sunshine Law.
On August 9, 2016, MDHSS advised Ms. Ganz the agency was denying both of her requests for birth and death listings, stating they had opted to exercise the
discretion granted in Section 193.245(1), RSMo, to decline them.
On August 24, 2016, the attorney representing Ganz sent a letter to MDHSS advising them that: (a) DHSS’ reversal of its position was contrary to the Missouri Sunshine Law; and (b) Ms. Ganz intended to pursue litigation—and to seek penalties and attorneys’ fees for DHSS’ purposeful violation of the Sunshine Law—unless MDHSS provided the requested records at actual cost.
Meanwhile, MDHSS executed their plan. They put forward to the Missouri Legislature a proposal to change the law and remove the provision requiring MDHSS to provide birth and death listings upon request. After it was introduced, state officials lobbied members of the legislature for this change. As late as July 2018, DHSS was considering renewing its request to change the law. However, despite their efforts, the Missouri law has not been amended.
After four and a half years of legal work on the case, Reclaim the Records won their case in court. On April 15, 2020, the judge ruled and provided a summary judgment:
- DHSS knowingly violated the Sunshine Law when it charged the Plaintiffs an hourly rate that was more than double the rate the agency knew was allowable under the law.
- DHSS committed knowing violations of the Sunshine Law when – six months after it received the Plaintiff’s requests, and after it had provided three separate fee estimates for producing responsive records – DHSS denied Plaintiffs’ requests for open records.
- DHSS committed purposeful violations of the Sunshine Law “A purposeful violation of the Sunshine Law occurs when there is a ‘conscious design, intent, or plan to violate the law and do so with awareness of the probably consequences.” The secret plan advocated by the former State Registrar – which DHSS followed meticulously – is a textbook case of a purposeful violation of the Sunshine Law.
- This secret plan represents an utter disdain for “the public policy of this state…records…of public governmental bodies be open to the public unless otherwise provided by law.” Governmental bodies are not allowed to deny requests and then seek a law closing them; instead, they may only close records that are closed by existing law.
- An award of the Plaintiffs’ attorney’s fees.
- An award of $12,000 in total in penalties for DHSS’ purposeful violations of the Sunshine Law.
- DHSS was ordered to provide Plaintiff Brooke Schreier Ganz with digital records of all persons born in Missouri between 1920 and 2015; and digital listings of all persons who died in the state between 1968 and 2015 within 15 days after receipt of payment from the Plaintiff of the total cost of $2,557.30.
Reclaim the Records
Reclaim the Records is a nonprofit group that seeks public genealogical data sets wrongly restricted from public access by government archives, libraries, and public agencies. Once securing the records, the organization digitizes the records and makes them available online to the public for free and without usage restrictions. Since its founding, the group has reclaimed more than 28 million records
for the public’s benefit.
Brooke Schreier Ganz, genealogist and computer programmer, is the founder and current President of Reclaim the Records. The group’s board of directors includes a Fellow of the American Society of Genealogists (membership is limited to only 50 living fellows); the former Chief Technology Officer of FamilySearch, the largest genealogy organization in the world, which is operated by The Church of Jesus Christ of Latter-day Saints; and a forensic consultant to the U.S. Army who conducts genealogical research to identify potential family members of unaccounted soldiers from World War I, World War II, Korea and Vietnam for possible DNA matches with soldier’s remains recovered from the battlefield.