The Evansville newspaper and local county health department appeared before the Indiana Supreme Court Thursday, reviving a dispute they had decades ago over whether death certificates are public record.
In 2012, the Evansville Courier & Press filed a complaint against the Vanderburgh County Health Department after the health department denied the newspaper’s request for access to May 2012 death certificates. The newspaper was interested in learning the decedents’ cause of death, but the health department maintained that information was not a matter of public record.
Both the Vanderburgh Circuit Court and the Indiana Court of Appeals agreed with the health department. The Indiana Supreme Court granted transfer of Evansville Courier & Press v. Vanderburgh County Health Department, 993 N.E. 2d 302 (Ind. Ct. App. 2013).
Speaking to the justices, Patrick Shoulders, attorney representing the newspaper, summed up the case as being focused on the narrow issue of whether death certificates, which include the cause of death, and certifications of death registration are the same thing.
The newspaper contends they are two different documents. Consequently, while I.C. 16-37-1-8 limits who can obtain a certification of death registration to those who have a direct interest, it does not prohibit the public disclosure of death certificates.
However, the Vanderburgh Health Department, represented by Joseph Harrison Jr., asserted the Legislature used the terms “certification of death registration” and “death certification” interchangeably and access is limited only to those who meet the criteria outlined in the statute.
In 1975, the same parties had a similar dispute over death certificates. Then, the Indiana Court of Appeals ruled the documents were open to the public. The Indiana Supreme Court did not grant transfer.
Shoulders, partner at Ziemer Stayman Weitzel & Shoulders LLP in Evansville, pointed to the Court of Appeal’s prior opinion and said the newspaper believes “this court will affirm 40 years of precedent in this state and hold that, in fact, they are different documents.”
The Indiana attorney general and Indiana public access counselor have filed amicus briefs in support of the newspaper’s position. During oral arguments, Stephen Creason, deputy attorney general, briefly presented to the justices the state’s position that the death certificates listing the cause of death were public record.
The justices asked many questions about the 2011 change to an electronic system of record keeping and if the county health departments still had access to cause of death information.
Justice Steve David asked Shoulders what would happen if the county health department did not have the cause of death and could not produce that information.
Shoulders maintained that local health departments have the information and can produce both a certification of death registration and a death certificate. He said the health department is using a “cut and paste collage of several statutes” to support its denial of access.
On the other hand, Shoulders noted, all three branches of state government have found death certificates to be public records. Specifically, in addition to the Court of Appeals decision in 1975 and concurring opinions from the Indiana attorney general and the Indiana access counselor, he said the four attempts by the Indiana General Assembly to limit access failed.
“I would suggest the attempt (here) is to do, perhaps through the judiciary or simply in practice, to amend this statute since four attempts to do it in the only proper way have failed,” Shoulders said. “That, in fact, by de facto action they are attempting to amend the statute and it is not their place to do that. It is the Legislature’s place to do that.”
The justices seemed less sympathetic to the Vanderburgh County Health Department.
Harrison, of counsel at Massey Law Office LLC in Evansville, contended the newspaper was “splitting hairs” in making a distinction between certification of death registration and death certificate. The terms are synonymous, he argued.
Moreover, he pointed out, the state mandates county health departments maintain for public access the death records of all county residents excluding the cause of death and Social Security numbers of the deceased. Harrison then questioned why the state would limit the information a health department makes available while, at the same time, allowing anyone to have access to a death certificate that gives the cause of death.
“To me, the Legislature has spoken on this,” Harrison told the court. “It’s clear that you can’t go to the Indiana State Department of Health and get a death certificate with cause of death information unless you meet specific requirements for those who are entitled to receive it.”
Both Chief Justice Brent Dickson and Justice Robert Rucker raised the possibility that the Legislature’s intent was not to limit access but rather to relieve the state from having to fulfill the requests by having the county health departments provide the information.
Harrison reiterated the statue is “perfectly clear” that only people meeting the statutory requirements can get access.
Rucker then asked, “Is it your position that the department does not have this information or that we’ve got it but you can’t get it because the statute says so?
“Oh no, they’ve got the information but it’s in the Indiana state death registration system,” Harrison replied.
“So nothing that would prohibit the county from extracting the data,” Rucker asked.
“They do it all the time,” Harrison answered.
Later Justice Mark Massa and David picked up the same line of questioning, inquiring whether the health department was able to get the death certificates. Harrison replied the local agency can provide the documents.
The court took the case under advisement.