Jonathan O'Donnell wrote:
"This is so great! Will the lawsuit against the New York City Department of Health and Mental Hygiene also seek to recover the New York City death index books through 1986 that were confiscated from the New York Public Library in the dead of night?"
Short answer: yes, but we want more than the books, and it would be handled in a separate lawsuit, and not right now, but in the near-ish future. ;-)
Longer answer: The New York City death index books that were on the shelves at the New York Public Library went up through about 1982, I think. They were, just as you say, pulled off the shelves in the dead of night, and without a public comment period, a few years ago. See below for what they looked like before they got pulled:
Without these books available, the main public copy of the New York City death index is a set of old microfilms (originally created by the NYC DOH) that go only up through 1965, not through 1982, and certainly not through 2020. FamilySearch has a copy of the films, but you have to be actually onsite at one of their Family History Library locations (or using their WiFi from the parking lot) to see them, and cannot see them from home.
Those old FamilySearch films were then digitized a few years ago (without permission, presumably) by a small commercial company called Vitalsearch.com (not to be confused with Vitalchek, which is the Lexis-Nexis owned company for ordering paper certificates). Vitalsearch then watermarked all the images, cut a deal with Ancestry.com, sold them the images, and then Ancestry transcribed them all and made a database. By that time, the images were like fourth generation removed from the originals and hard to read, and so the transcriptions are not always quite right, especially the certificate numbers.
So now we finally have a mediocre text-searchable death index for New York City -- but only on a paywalled commercial website and only up through 1965, fifty-five years ago. Not okay.
(Also, Vitalsearch slapped a copyright notice in red on every single image, along with their watermarks, and just so we're all clear, that is not actually a thing. Personally, I always find it hilarious when a shady company run through a semi-anonymous Nevada LLC decides to profit off taxpayer-funded public data by simply declaring that they own it all in a way that has no actual legal backing beyond Photoshop skills and chutzpah, but maybe that's just me.)
Right after the books were pulled at the NYPL, I had two phone conversations about the situation with the then-head of the New York State Committee on Open Government (COOG). COOG is a group of attorneys in Albany, funded by the state legislature, who basically get paid to give free legal advice to both the public and to state agencies who are trying to work with the state Freedom of Information Law (FOIL). In both of our conversations, COOG's executive director was absolutely livid at both the city for "retroactively classifying" the death index and at the NYPL and their librarians too, for allowing a government agency to come take their books instead of standing up to them. He pointed us to a number of previous Advisory Opinions that are online at COOG that we could use if we intended to go after the books legally.
So originally, we at Reclaim The Records thought great, that means we have a good shot at getting the books back! They were already created by a public agency, with public funding, and were known to be available to the public for decades. You can't retroactively make a purposely-public document not-public. "No backsies!" as the kids say. Seemed straightforward enough.
But then we realized that waitaminute, the city has all that death index data in a database, which they used to print the books in the first place. Why should we go after old paper books just to go laboriously scan them and then transcribe them or OCR them, when we can go right to the source material, the underlying database? And then we heard through the grapevine that as late as 2008, the DOH was allowing genealogists to go into their office and see the modern day death index (and the birth index, too!) on printed paper lists... And if they already made it publicly available, then...No backsies!
So, to sum up: we are definitely planning on going after the New York City birth index and death index as one of our projects in the future, but most likely not the old books -- instead, we want the entire database, in CSV or SQL or whatever format they keep it in, and we want the data up through as recently as possible. Because of rule changes at the NYC DOH we might have to limit the end date of the data request to 2008, or maybe not -- we'll have to see if we think we can make a good legal case to push that up to the present day. But having the data even through 2008 would still be a big step up from where we are now, and also would be in a native digital format.
Relevant to the news: we also know that the NYC DOH gives copies of the up-to-date death index to the NYC Board of Elections on a regular basis, to make sure that recently-dead voters are struck from the rolls. We're wondering if we can try fighting for the data once it enters the BoE instead of fighting the DOH itself... And we know there are a couple of other places where the city freely shares the data with other organizations, not all of them in the government, and those might be good entry points, too.
In any case, this fight will take a separate FOIL request, and it will very likely wind up turning into a lawsuit. And I think we would want to wrap up some of our other pending work before tackling it; we are already juggling a lot of balls (that is, lawsuits and potential lawsuits) right now. But it is definitely on our "to-do" list.
- Brooke Schreier Ganz
President and Founder, Reclaim The Records
Mill Valley, California