What a week on the records access front! It’s been a definite roller coater, and — on the federal front — the roller coaster is just starting to pick up steam.
We’ve had good news, with the breakthrough on the privacy rule under HIPAA that now removes the federal roadblock to access to health records by medical genealogists. The prior rule closed those records forever, even generations after the patient’s death; the current rule allows access under federal law after 50 years.1
And yesterday we got more good news on the proposal pending in the Oregon House of Representatives that would have lengthened the time before key vital records — birth, marriage and death records — would be public.2 Yesterday’s public hearing on that bill began with the State Vital Records Registrar, Jennifer Woodward, asking the committee to accept a set of amendments eliminating all of the provisions of the bill that were objected to by the genealogical community and the Oregon State Archivist.
The Legal Genealogist is delighted to report that the amendments were adopted and the bill as reported to the full Oregon House of Representatives has none of the problems we were all concerned about.3
But we’ve had some bad news — some very bad news — as well on the question of open access to the Social Security Death Master File (DMF) — what we all know as the Social Security Death Index or SSDI. The Obama Administration has now joined in the movement to close the DMF/SSDI at least for a time after the death of the individual.
That news came buried deep in the 488 pages of the Administration’s proposed Fiscal Year 2014 budget (thanks to reader John for the heads-up on this), and there are two statements there that tell us what we’re in for.
The less-concerning statement is on page 206, and it tells us where the Administration is headed:
Restrict access to the Death Master File (DMF).—
The DMF, which is publicly available and updated weekly by the Social Security Administration (SSA), contains the full name, Social Security number (SSN), date of birth, date of death, and the county, state, and zip code of the last address on record for decedents. Although some DMF users need immediate access to the DMF for fraud prevention purposes, others are using the DMF for illegitimate purposes, including identity thieves who use the DMF to steal the names and SSNs of recent decedents, which information identity thieves then use to file fraudulent tax returns. The Administration is proposing to restrict immediate access to the DMF to those users who legitimately need the information for fraud prevention purposes and to delay the release of the DMF to all other users. This proposal would reduce opportunities for identity theft and restrict information sources used to file fraudulent tax returns. The proposal would be effective upon enactment.4
The time period of the delay we’re hearing about is roughly the same two-to-three years that’s part and parcel of most of the legislation that’s been introduced over the past few years to restrict access to the DMF/SSDI: usually the year of the person’s death and anywhere from one to three calendar years thereafter.5
I’ve said it before, I’ll say it again: most genealogists could live with that. For most of us day-to-day family researchers, we just don’t need instant access to the DMF/SSDI. But that’s not true for all of us. Because there are genealogists who do need that kind of access — genealogists who work to identify military remains, who work with coroners’ offices and medical examiners, who are forensic genealogists, heir researchers, and those researching individual genetically-inherited diseases.
I remain deeply concerned that our forensic colleagues may not among those who could be regarded as having legitimate interest in access because they don’t deal with fraud prevention. Their work — work that all of us as a society should be supporting and assisting — would be horribly impacted. Loss of this resource would be devastating. So as much as most genealogists would like to find common ground with the Administration and members of Congress who are concerned about identity theft, we’re can’t support proposals like this that paints with far too broad a brush.
The proposal doesn’t need a lot of tweaking to be acceptable: it only needs to consider the genuine, verifiable needs of part of our community. It isn’t there just yet; there’s work to be done to get it there.
But what’s really scary is the language on page 153 of the budget:
Reduction of Identity Theft by Reforming the Death Master File.—
The Budget proposes to amend the Social Security Act to limit access to the “Death Master File” to prevent this information from being used to file fraudulent claims for benefits or tax refunds. This proposal provides that the Commissioner of Social Security may use, or provide for the use of, records of deceased individuals, subject to such safeguards as the Commissioner determines are necessary or appropriate to protect the information from unauthorized use or disclosure, for the purpose of public health or safety, law enforcement, tax administration, health oversight, debt collection, payment certification, disbursement of payments, and for the prevention, identification or recoupment of improper payments. This proposal would result in PAYGO savings of $1.3 billion over ten years.6
This kind of language, if enacted into law, pretty much gives a blank check to the Commissioner of Social Security to decide who can and can’t access the records — and not just the DMF/SSDI but the underlying records like the SS-5 applications for a Social Security number that are part and parcel of a genealogist’s bag of tricks. It shifts the decision-making from a concept of open access under the Freedom of Information Act, over to rulemaking where the Commissioner will decide what is “necessary or appropriate to protect the information from unauthorized use or disclosure.”
Bad idea. Very bad idea. No bureaucrat should be in charge of making those kinds of fundamental decisions about access to public information and public records. And especially not a bureaucrat in charge of an agency that would rather not be bothered with anything other than its current mission. Providing access to family historians is an annoyance. The kneejerk internal reaction will be to cut us off at the knees. And fighting that mindset in a bureaucracy can be a nightmare.
So we’ve sure got our work cut out for us… Stay tuned.
- Judy G. Russell, “Breakthrough for medical genealogy,” The Legal Genealogist, posted 8 Apr 2013 (https://www.legalgenealogist.com/blog : accessed 9 Apr 2013). ↩
- See ibid., “And one step back…,” The Legal Genealogist, posted 9 Apr 2013. ↩
- An audio of the proceedings is available at the Your Government page of The Oregonian’s Oregon Live website. It requires the browser plug-in RealPlayer or a similar plug-in to listen. ↩
- Executive Office of the President, Office of Budget and Management, “Analytical Perspectives: Budget of the U.S. Government,” PDF version, at 206; whitehouse.gov (http://www.whitehouse.gov/ : accessed 10 Apr 2013). ↩
- See e.g. Judy G. Russell, “Now there are three,” The Legal Genealogist, posted 25 Feb 2013 (https://www.legalgenealogist.com/blog : accessed 10 Apr 2013). ↩
- OMB, “Analytical Perspectives: Budget of the U.S. Government,” PDF version at 153. ↩