After losing a public-records fight, the Massachusetts DPH is trying to rewrite the law.
For the past year, I have trying to do something that should have been simple: obtain Massachusetts vital records in an uncertified format, as has been the convention in the state going back, as far as I know, for forever.
Most non-genealogists need vital records in the form of a certified copy, a legal document that’s stamped, printed on security paper, and used for official purposes. An uncertified copy, on the other hand, is purely informational, costs far less, and is what researchers commonly use. Under the Public Records Law, agencies can only charge for copies of records in limited circumstances. What this means for genealogists is that if we can obtain uncertified copies of vital records, we can essentially get them for free. There would be exceptions for large and complicated requests, but in a scenario of “I ask a clerk for this one document” there is essentially no way they can charge, except perhaps a few cents for ink, paper, and postage. If the document is just being scanned and emailed, it should be entirely free. This is in line with public records laws all around the country. As a general rule, agencies cannot charge for small requests.
Massachusetts had long recognized certified and uncertified vital records; and one can easily find local newspapers reporting on the two tier system of vital records going back decades. In 1937, The Morning Union reported that “Unofficial Birth Certificates Are Available Gratis,” noting that Springfield’s city clerk would furnish unofficial birth-certificate copies without charge, while certified copies required a fee. In 1942, The Springfield Daily Republican reported that Massachusetts birth-certificate requests surged because defense-industry workers needed proof of citizenship. The article distinguished certified copies from “uncertified abstracts,” stating Boston charged $1 and the state 50 cents for certified copies, while the state made no charge for uncertified abstracts. As recently as 1990, The Berkshire Eagle reported that more than 160,000 citizens, researchers, lawyers, and genealogists obtained “certified or uncertified copies” of birth, death, marriage, and divorce certificates each year from the Registry of Vital Statistics.
At some point in the modern era, Department of Public Health (DPH) and by extension, the Registry of Vital Records and Statistics (RVSS, commonly called “The Registry”) began treating this system as if it did not exist, by collapsing all access into certified-copies. Instead of treating uncertified copies as public records, DPH and many local clerks began to insist that researchers must purchase certified copies of vital records. This approach essentially added a tax to previously run of the mill public records requests and made serious research far more expensive. Additionally, many municipalities will only provide a certified typescript of a document, so they are blocking access to the original record entirely, which often contains more information.
Last year, I decided to push this issue with the Supervisor of Public Records (SPR), the Commonwealth official tasked with enforcing the Public Records Law, by bringing complaints against a variety of municipalities who refused to provide uncertified copies of vital records, and what ensued was quite dramatic. Although the appeal was technically lodged against the municipalities, they all take direction from the DPH, which provided guidance to all clerks advising them to not provide uncertified copies of vital records under any circumstances.
Over the course of what amounted to dozens of different appeals, many arguments were brought up purporting why vital records were special magic records not subject to the Public Records Law. The towns raised unfounded concerns about identity theft, fraud, privacy, and public safety–at one point even invoking an exemption reserved for terrorists. Their most serious argument is that the law that creates the certified copy regime implicitly bans uncertified copies, which completely goes against how public records laws operate. Records are presumed public unless specifically exempt, and in this bizarre case, the agency wasn’t even arguing that the information wasn’t public, just that the record could only be provided if they certified it and if I paid a fee for an unneeded certification. They somehow argued that me not getting a certified copy could lead to fraud, even though the records I wanted cannot be used for any legal purposes, whereas the records they were trying to force me to purchase could be.
The Supervisor of Public Records repeatedly agreed with me. In ruling after ruling, the SPR found that DPH and local clerks had not met their burden to justify withholding these records. Under the Public Records Law, it is not enough for an agency to hold up their hands and shout “vital records” or “privacy” or “fraud.” The custodian has the burden to identify a specific exemption and explain how it applies, and they were unable to do so.
That should have ended the matter but it did not. The vast majority of municipalities would not yield to the SPR, and continued to follow the DPH’s orders. In fact, some flat out stated that they would not provide uncertified records until the DPH gave them permission, even though the SPR is the body that rules on public records, not the DPH, and the SPR was siding with me. I kept making appeals, but we essentially reached an impasse. The SPR kept rejecting the certified-only and blanket-exemption theories, while DPH and municipalities kept repackaging them. Eventually, the dispute escalated beyond ordinary appeal practice. The Supervisor has started referring these vital-records matters for enforcement by the Attorney General (AGO). Although referrals used to be more common, the SPR actually stopped the practice in 2023. Until my issue arose, there had been no referrals for more than two years. While the AGO has not yet initiated any actions, it is a positive development for records access that the referral occurred at all.
Then came a legislative proposal.
After arguing that existing law already allowed it to withhold uncertified records (ignoring all precedent on the matter), DPH appears to have changed tactics. It is now seeking legislation that would impose the restrictions it had failed to justify to the SPR. Section 43 of H.5377, a supplemental budget bill, would explicitly close uncertified birth and marriage records for 90 years and death records for 50 years. It would also give DPH broad discretion to decide what information is “sensitive” and who has a “legitimate need” to see vital records, which means that they may even regulate who can access certified copies of records, something they have not yet claimed authority to do (although they did push a similar legislative matter in 2020 that was rejected).
When the DPH could not lawfully withhold records from me, it tried to change the law so that it could. I wasn’t exploiting some loophole that nobody had previously considered. Vital records have been open to the public in Massachusetts for 400 years. Uncertified vital records are public records just as much as essentially any government record is a public record. Despite this long-standing history, the DPH has done its best to gaslight us into believing that we have to pay for inferior versions of vital records even though the law is incredibly clear that we do not. Or at least, the law is clear for now. If this proposal were to be signed into law, then they would win their fight, closing off access to decades of uncertified, and potentially even certified records. Massachusetts might lose its status as one of the most genealogy-friendly states in the nation.
This issue is bigger than genealogy though. Genealogists are on the front lines because we know how vital records work and we use them to study our families. But vital records also help journalists investigate institutional failures. They help researchers study maternal mortality, overdose deaths, elder care, infant health, health disparities, and public-health crises. Closing these records for 50 or 90 years would would bind families, researchers, and journalists alike. DPH may want to frame this as a niche dispute with genealogists. It is not. It is a transparency fight. You can view the letter that we at Reclaim the Records sent to the Massachusetts Legislature opposing this budget measure here.
Others are speaking out too. The Association of Professional Genealogists has warned that Section 43 would harm probate research, adoptee and descendant searches, dual-citizenship applications, hereditary medical-history research, and efforts to reconnect families with the remains of missing military personnel.
The Boston Globe editorial board also condemned the proposal, calling it the wrong fight at the wrong time. The Globe warned that restricting uncertified records would harm researchers, journalists, genealogists, and public-health accountability. It also criticized the decision to put such a major policy change inside a budget bill, where public debate is limited.
If you live in Massachusetts, write to your own state representative and state senator. Tell them you oppose the proposed 90-year and 50-year closures. Tell them vital records have been public in Massachusetts for centuries. Tell them DPH should not be given broad discretion to decide who has a “legitimate need” for public records.
Section 43 is before the Ways and Means Committees, which means that now is the time to speak up. Massachusetts genealogists — especially Massachusetts residents — should contact their legislators immediately. I suggest that everyone, including non-residents write to the Ways and Means chairs (the people who deal with budgets). Although this has been shoehorned into a budget bill, it would also be useful to write to the chairs of the Committee on Public Health along with Governor Healey:
Governor Maura Healey, Governor of Massachusetts: Contact form: https://www.mass.gov/info-details/email-the-governors-office
Representative Aaron Michlewitz, Chair, House Committee on Ways and Means: Aaron.M.Michlewitz@mahouse.gov
Senator Michael Rodrigues, Chair, Senate Committee on Ways and Means: Michael.Rodrigues@masenate.gov
Senator William Driscoll, Senate Chair, Joint Committee on Public Health: William.Driscoll@masenate.gov
Representative Marjorie Decker, House Chair, Joint Committee on Public Health: Marjorie.Decker@mahouse.gov
Clarify that you oppose Section 43 of H.5377, which would close uncertified Massachusetts birth and marriage records for 90 years and death records for 50 years. If you’re a professional, explain the impacts to your small business. Personal stories help. If vital records helped you find a parent, grandparent, biological relative, military family, probate heir, medical history, immigrant ancestor, or lost branch of your family, say so. Legislators need to understand that this is not abstract. These records matter because people matter.
Do not let DPH rewrite the law. The Supervisor of Public Records has rejected DPH’s attempts to turn public records into a revenue generator. Now DPH is trying to change the law. The Legislature should not let it. Massachusetts has one of the oldest traditions of public vital-record access in the country. Let’s keep it that way.
