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Is a death certificate public information?

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In finding that a death certificate is not public information, the Indiana Court of Appeals overturned nearly 40 years of precedent and raised questions about legislative intent.

The dispute started in June 2012 when the Vanderburgh County Health Department denied a request by Rita Ward to see copies of death certificates. When a subsequent request by the Evansville Courier & Press was also turned down, Ward and newspaper filed suit against the health department.

key Key

In Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, 82A04-1302-PL-57, the Court of Appeals affirmed the trial court judgment in favor of the health department.

The appellate court ruled that the “certificate of death,” a document filed by the physician, is the same as a “certification of death registration,” a document created by the health department and available only to certain individuals, like family members. Therefore, the court concluded, the “certificate of death” is not a public record.

Open records advocates were surprised and disappointed by the decision. It not only upended a 1975 ruling by the Court of Appeals, it also went against the Indiana Public Access Counselor’s opinion that the death certificates are public records.

“In our mind, it’s a significant change from what everybody felt was the law since 1975,” said Steve Key, executive director and general counsel of the Hoosier State Press Association. “And it does have a great impact on the ability of people to better understand what’s happening in their communities in terms of why people are dying.”

The newspaper and Ward have filed a petition for transfer with the Indiana Supreme Court. Among those filing amicus curiae briefs in support of the petitioners is the HSPA and Indiana Attorney General Greg Zoeller.

Explaining why the attorney general’s office wants a Supreme Court review of this case, Zoeller said the office remains committed to defending the legal opinions issued by the public access counselor. The attorney general’s office, he continued, supports the principle of openness and transparency in government along with the rights of citizens to gain access to government records.

zoeller-greg.jpg Zoeller

Tangle over words

The Court of Appeals stated in its opinion that Ward and the Evansville Courier & Press wanted access to the death certificates so they would see what caused the decedents’ deaths.

Examining the state statute, the court found that neither the certificate of death nor the cause of death is public information.

The Court of Appeals defined the legal dispute as centered on Indiana Code 16-37-1-8, which lists the prerequisites that must be met before a death certificate can be issued. Subsection (a) uses the term “certification of … death … registration” when listing who can receive the document. However, in subsection (d), the statute uses the phrase “certification of death.”

The health department interpreted subsection (d) as limiting who has access to the death certificate. The newspaper and Ward countered that the term “certification of death” was shorthand for the longer “certification of death registration.”

Pointing to the wording of the statute, the Court of Appeals was unconvinced by the appellants’ argument. Specifically, the court asserted the language shows the Legislature used the terms interchangeably.

The appeals court did note that the state does require the local health departments to make certain items from the death certificates available to the public. Under I.C. 16-37-3-9, the public is entitled to review the name, gender, age, place of death and residence of the deceased. Not included in this list is cause of death.

“We acknowledge the interest in using cause of death information to identify public health risks perhaps otherwise overlooked by public agencies,” Senior Judge John Sharpnack wrote for the court. “Nonetheless, we are not at liberty to ignore the legislature’s intent as demonstrated through its statutes.”

Key saw more harm than good in keeping the cause of death private.

The deceased cannot be embarrassed or be negatively impacted by enabling a community to see how that individual died, he said. But without that information, the community members will have no way to determine the health safety issues they are facing. Instead, they will be “forced to trust that state and county health department will protect them.”

Zoeller stated in his brief that the statute about the certificate of death, I.C. 16-37-3-3, requires a copy of the death certificate, which includes the cause of death, to be kept at the local health department. Nothing in this statute or any other state law holds that any of the death certificate information is exempt from the Indiana Access to Public Records Act.

Legislature’s intentions

Ironically, the case that set the precedent that certificates of death were open to the public also originated in Evansville in a dispute between the health department and a local newspaper. The judges in that case, Evansville-Vanderburgh Dept. of Health v. Evansville Printing Corp., 165 Ind. App. 437 (Ind. Ct. App. 1975), reached the conclusion that a death certificate was a separate document from a certification of death registration and, therefore, was a public record.

In a footnote to the 2013 decision, the Court of Appeals acknowledged the earlier ruling but maintained that the 1975 decision does not support a similar conclusion in the present case.

Patrick Shoulders, partner at Ziemer Stayman Weitzel & Shoulders LLP in Evansville, said a 2011 change to the statute is being misinterpreted. Shoulders represents the Evansville Courier & Press and Ward.

The Indiana General Assembly amended the statute to require local health departments to send death information to the state through electronic means rather than submitting a paper copy, he said. But, Shoulders said, it did not place restrictions on information that was previously available.

Joseph Harrison Jr., attorney at Massey Law Offices LLC in Evansville, represents the Vanderburgh County Health Department. He declined to comment while the case is still going through the appeals process.

Key said the Legislature has had plenty of opportunities to revise the statute to include more prohibitions but has not done so. The General Assembly did not pass any bill in response to the 1975 ruling.

When the Legislature was adding language that mandated local health departments electronically send information to the state, it kept the requirement that all 92 county health agencies retain a copy of the death certificate.

That move, Key said, verified the General Assembly’s intent that certificates of death be kept available for public inspection.

Zoeller also charged in his brief that the Court of Appeals read the laws too narrowly. He stated the Access to Public Records Act requires the courts to give a liberal reading of public records statutes and that the Legislature has been clear that “its statutes be read liberally in favor of facilitating public access to governmentally-held information.”

Indiana Public Access Counselor Luke Britt said the differing interpretations of the statute are confusing. He was appointed in August 2013 and did not write the amended opinion that death certificates are public records.

Whether the Legislature intended to make a distinction between the certificate of death and the certification of death registration is not clear, he said. Therefore, taking a closer look at the issue of intent is merited.

“It is a public record,” Britt said of the death certificate. “The issue is whether is can be released pursuant to a public records request.”•

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  • Not trying to bury Paul
    Paul, well if the former chief justice of Indiana and his manager, George Soros, get their way there will be no judges chosen by the people anywhere in the USA. Kommissars will rule the judiciary.
  • golly
    This is ridiculous and it is presently causing hassles in other counties for lawyers with legit needs to access these records that have new time consuming and pointless hoops to jump. Cut the cr*p and call it a public record already.

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    1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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