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Proposed Rules: Closed to Comments (View Public Comments Received:357)

Agency:
Comment By: 
Tuesday, October 24, 2017
Proposed Rules Content: 
 
 

Statement of Basis and Purpose

Introduction

            Birth and death records are protected from access by the general public because they contain individually identifiable information, which is considered private.  A birth certificate contains the first and last name of the person whose birth is being registered, date of birth, sex, home address, and mother’s maiden name.  In addition to information about the decedent, a death certificate contains the first and last name of parents, surviving spouse, and individual reporting the death.  All of this information is individually identifiable information within the meaning of Health Code section 3.25, which as the notes accompanying that section’s adoption state, “will be treated with the utmost confidentiality.”  Yet, birth and death records are also important historical documents that at some point should be available to historians and families researching their ancestries.  For this reason, Administrative Code section 17-170(b) charges the Board with deciding when the original records of births and deaths filed with the Department, and the indexes to such records, should become public records and transferred to the Department of Records and Information Services (“DORIS”).

The proposed rule amendment would, if approved by the Board of Health, amend the Health Code to establish fixed schedules for making these records public and transferring them to DORIS. Specifically, the Department is proposing that:

    • a birth record become a public record on January 31st of the year following 125 years after the date of birth, and
    • a death record becomes a public record on January 31st of the year following 75 years after the date of death.

The Department believes that these proposed schedules balance the need to protect the personal information of people who may be alive, especially as it relates to the problem of identity theft as well as other privacy issues, with the public’s right to access historically important records, including the specific interests of families, genealogists and other researchers.  The proposed schedule would also avoid the transfer of records to DORIS that are, in the Department’s experience, still subject to amendment by the individual to whom the record pertains, the Office of Chief Medical Examiner, the courts, or family members. 

If the Board adopts this proposal to commence amending the Health Code, the Department is very interested in receiving comments about the appropriateness of these time periods, in particular both from privacy groups and genealogists, and about adopting a 50-year confidentiality period for death records rather than the 75-year period proposed here. 

Background and New Requirements

Birth and death records

In New York City, as in most vital records jurisdictions nationwide, the certificate of birth collects a wealth of information, pertaining both to the person registered on the record and their family members. On the birth record, this includes: the registrant’s date of birth, location of birth, and sex; the mother’s and father’s names prior to first marriage, places of birth, and dates of birth; as well as the number of children delivered at the time of birth, and a home address.  Death certificates, in addition to presenting date and cause of death, include date of birth, location of death, names of parents, as well as information on the surviving spouse and the living person known as the  informant, including their name, relationship to decedent and mailing address.  This type of personal identifying information (“PII”) is protected in other contexts under multiple federal, State, and local privacy laws.

Necessary and appropriate use of birth and death certificates and information

Information included in birth records and actual copies of birth certifications are required by multiple governmental agencies and private entities to receive a benefit or service, or to support the issuance of other documents often used for identity purposes such as obtaining a driver’s license. Birth records are considered “foundational documents,” meaning they are often the first document obtained that enables the holder to then obtain other important documents.  For example, the information contained in a birth certificate can also be used as part of the process to get a U.S. passport or Social Security card and to access public benefits such as Medicaid.

Death records and the PII included in them are used to open or close decedents’ bank accounts, notify federal agencies such as the Internal Revenue Service and the Social Security Administration of a death, and to start the probate process in court.  They are also needed to access payments such as life insurance and various survivor’s benefits in pensions and other programs. 

Fraudulent and inappropriate use of birth and death certificates and information

            The PII found on birth and death certificates has the potential to be used in various fraudulent ways, including identity theft.  Identity theft involves appropriating PII and, in the name of that person, incurring debt, taking money from financial accounts, opening new accounts, accessing medical information or services, or receiving a tax refund, among other things.   Indeed, birth certificates are often referred to as “breeder documents” because they can be used to obtain other valid forms of identity.   Information from death certificates can be used in a similar manner, sometimes referred to as “ghosting.”     

Amendment and correction of birth and death records/issuance of new birth certificates

Birth and death certificates are considered “living” documents in that their content can be changed in certain circumstances.  Pursuant to Article 207 of the Health Code, their contents may be amended or corrected, or a new birth certificate issued, to correct errors made in the originals or to reflect changes in circumstances, such as adoption or change in gender.  These are common requests from Vital Records customers.  During the five-year period from 2012 to 2016, the Department processed 1,030 birth record corrections and amendments for individuals born in 1940 and earlier, including 24 delayed registrations of birth and amendments for individuals aged 90 and above.  During the same five year period, the Department also processed 257 death record corrections and amendments for individuals who died in 1970 and earlier.  These are legal changes to records requested by living New Yorkers or their survivors.  Pursuant to Health Code § 207.01(a), only the Commissioner of Health or his or her designee may make these changes.  Similarly, death certificates may be changed by the Office of Chief Medical Examiner when a cause or manner of death is amended, an important function as new facts come to light.  

When such changes are made to birth certificates, Administrative Code section 17-167(c) requires the substitution of the new birth record for the one on file.  The Department must place the original birth certificate under seal, which may not be broken except by order of a court of competent jurisdiction, and must provide the new birth certificate when a certified copy of the record is issued.  Amending a birth certificate after it has been released into the public domain undermines the Department’s ability to fully substitute the amended certificate for the original and effectively seal the prior records, as the law describes. Over time, multiple versions of the same birth records could even be circulating in the public domain, diminishing the reliability of these records and creating confusion around authenticity.  For these reasons, as well as similar risks to death certificates, it is important the Department not make these documents publically available while they are likely to still be amended.  

Privacy concerns

In addition to the financial and security concerns discussed above, simple privacy concerns argue for maintaining the confidentiality of birth and death certificate PII during a person’s lifetime and for an appropriate period after.  For example, a teenage mother named on the death certificate of an infant may still be alive 75 years after her infant had died or the birth certificate of a transgender person may reveal information that person may prefer to keep private, especially if the certificate has not been amended.  

New Yorkers are living longer

New Yorkers are living longer than ever before. The 2010 US Census shows that almost a half-million New Yorkers are over the age of 75.

Age

Total

75 – 79

178,019

80 – 84

142,272

85 – 89

90,375

90 – 94

37,270

95 – 99

11,665

100+

2,096

Total

461,697

 

Another half million were between the ages of 65 and 74.   Since 2010, the American Community Survey estimates that the total number of New York City residents age 75 and over had increased to more than 492,000, with more than 1.25 million over the age of 65.   In 2005, 585 New Yorkers died between the ages of 100 and 114.  In 2014, that number rose to 806 deaths between the ages of 100 and 114, a 38% increase, and in 2015 the number rose to 901.  Birth and death data should be protected to adequately reflect these trends to guard against identity theft and fraud.  

Model State Vital Statistics Act and Regulations (2011 Revision)

The Model State Vital Statistics Act and Regulations (“Model Law”)  were developed to serve as models for vital records jurisdictions in preparing their own laws and regulations.  Now in its sixth revision, the Model Law is a cooperative effort among state governments and the federal National Center for Health Statistics of the Centers for Disease Control and Prevention.  In 2011 the Model Law was revised to reflect the increase in life expectancy since the prior revision in 1992.  In order to ensure that no person’s PII becomes public prior to a person’s death, the Model Law now recommends that birth records not be released until 125 years after the date of birth and death records not be released until 75 years after the date of death.  

Proposed transfer of records

The Department proposes to adopt the Model Law as it applies to birth and death records: death records that are in the possession of the Department would be transferred to DORIS  75 years after death, and birth records in the possession of the Department would be transferred 125 years after birth.  Previously, these documents had been made public and released to DORIS at inconsistent intervals.  The earliest death records in the possession of the Department that have not been transferred to DORIS are from 1949 and would be made public beginning in 2024.  The earliest birth records in the possession of the Department that have not been transferred to DORIS are from 1910 and would be made public beginning in 2035.  The Department’s proposal is not intended to effect birth and death records already at DORIS, even if these records would not have been transferred had this proposed Health Code provision been in effect at the time of their transfer. 

Statutory Authority

Pursuant to section 556(c) of the Charter and section 17-166 of the NYC Administrative Code, the Department is responsible for supervising and controlling the registration of births and deaths that occur in the City of New York. Section 558(c) of the Charter requires the Board to include in the Health Code provisions related to maintaining a registry of births and deaths, as well as provisions related to changes or alterations of any birth or death certificate upon proof satisfactory to the Commissioner of Health and the manner in which these certificates may be issued and otherwise examined.  Administrative Code section 17-169 and Health Code sections 3.25 and 207.11 make birth and death records confidential and restrict access to these records beyond certain classes of specified people.  Section 17-170(b) of the Administrative Code authorizes the Board to determine when birth and death records are transferred to DORIS.  And finally, section 558(b) of the Charter specifically authorizes the Board to add to, alter, and amend the Health Code.

 

Subject: 

Proposed resolution to amend Article 207 (General Vital Statistics Provisions) of the New York City Health Code to establish a schedule for making birth and death records public and transferring them to the Department of Records and Information Services (“DORIS”)

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik, (347) 396-6078, resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf):