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Badger: Supreme Court will hear death records dispute

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badger-steven Badger

The Indiana Supreme Court will hear oral argument May 8 in a dispute over public access to county death records. The case, Evansville Courier & Press v. Vanderburgh County Health Department, raises the issue of whether a county health department’s death certificates, including the cause of death, are public records under the Indiana Access to Public Records Act.

Last summer, the Indiana Court of Appeals held that, although some death records kept by county health departments are specifically designated by statute as being “open to public inspection,” the cause of death was not among them and therefore is not subject to disclosure under APRA. In so ruling, the Court of Appeals expressly disagreed with a 1975 Court of Appeals decision under an earlier version of Indiana’s death records laws.

Traditionally, county death certificates, including the cause of death, have been open to public inspection from county health departments even though the same information has not been available from the state department of health’s electronic “death registration system” created in 2011. Unlike county records, the state system is exempted from public access in its entirety. However, the availability of the cause of death information from county health departments has permitted journalists to investigate public health issues, including news stories about the misuse of prescription medications, drug safety, medical errors and infectious disease. Earlier this year, for example, the Herald Bulletin in Anderson reported upon the deaths of 31 patients of a local clinic whose deaths were attributed to misuse of prescription medications.

The availability of death certificates to all Hoosiers also allows citizens to research their family histories. That benefits not only amateur genealogists but also citizens trying to identify potential genetic health issues.

Laws protecting citizens’ access to public records and public meetings facilitate citizen oversight of the operations and affairs of government. If government is to function as “the servant of the people and not their master” (an express purpose of APRA), citizens must be privy to information the government receives and how the government goes about the business of governing.

Access laws are hardly controversial, but it is easy to become blasé about enforcement of access laws in many situations. In the heat of controversy, even dedicated public officials will yearn to take refuge in secrecy. Fortunately, there are committed advocates both within and outside government who work to safeguard the public’s rights of access. Among them is Indiana Attorney General Greg Zoeller, whose office filed an amicus brief in support of the Evansville Courier & Press and arguing in favor of disclosure of county death certificates.

Public access disputes are rarely sexy. The Evansville Courier & Press case, for example, involves neither scandal nor political intrigue. However, the cause of death information included in death certificates is critical for investigative reporting of public health threats. It is hard to think of any societal issues more important than the public’s health. If government were able to hide information it gathers and receives relating to public health issues, it would be far more difficult for citizens to determine how well the government is protecting public health and to reach consensus on related public policy issues.

Ultimately, public records laws ensure government accountability. Without a strong commitment to maintaining public access to information, representative democracy could wither and die – ironic as such an outcome would be in the Internet era when information is readily available to all.•

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Steven Badger represents the Hoosier State Press Association, which filed an amicus curiae brief in support of the Evansville Courier & Press. Badger represents media organizations and journalists in First Amendment, defamation and media law matters. The opinions expressed are those of the author.

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