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.
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.
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.
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.”•