The collection of notes on this site concerns the restrictive and outdated laws governing access to historical vital records in Wisconsin. It advocates for the modernization of the penalty structure: Reduce the penalty for duplicating records for non-fraudulent, historical research purposes.
It’s my belief this day in age younger people will be deterred from learning about their ancestors and heritage by these dated restrictions. Wisconsin and its government needs to get its priorities straight about what is or should be public vs private and show its citizens that they serve them rather than being in the priority market to sell their ancestors records to genealogical companies. Wisconsin is the most research and genealogical unfriendly state considering its laws and hybrid historical society archives model.
Goal:
Have Wisconsin decriminalize copying uncertified vital records after ~100 years has passed by modifying Wisconsin statute 69.24(1) This will help genealogists and researchers. The goal will be achieved by attempting to resolve this with law makers. If that fails, then seek help in filing declaratory judgement or official opinion with the attorney general, to challenge the constitutionality of the application of the vital records laws. These laws are designed to stop people form making counterfeits to get a fake ID. What we have appears overbroad in terms of the penalty being the same for both certified and uncertified records and that it doesn't require the intent to deceive for it to be a crime.
Things needing to be done;
- Uncertified issued copies cannot and should not follow the same strict liability legal language as their certified counterparts. As of 2017 Electronic Verification of Vital Events (EVVE), has largely superseded paper verification.
Quite honestly I feel even certified versions should not follow this (Wisconsin only) problematic language. Only if the intent can be proven by the state that the person who used them for fraudulent use should that equal a felony. We are the only one with that strict liability stuff on the books, and that is only acceptable for laws/crimes that are well understood like rape etc.
- The second part is even certified records should be following some sort of rolling window of ~100 years, where after wards they are free from any fear of any felony. They need to be formally reclassified after a period of time as historic/archival records rather than vital records in the eyes of the law.
- This action ends; the need to potentially jeopardize your own identity by the required need to share PII to view or obtain these historic records. Also the unnecessary need to mark these records not for identify. (a law to prevent identity based transactions using 100 years old documents is a smarter law if necessary)
- It ends the regulatory overreach where the WHS is a custodian of the older records, but they use this statutory vacuum to maintain a functional copyright on what are supposed to be a public government documents at some point of expiry of fraud concerns.
- Ends the confusion on if the pre 1907 records are valid vital records as they bear no registar's signature.
Maybe there needs to be different windows for birth records vs marriage and death? A lot of states have different windows like that. (It makes sense to me as the birth record is really the concerning record, the others can "expire" sooner than the birth ones. See 69.20(3)(e)2 - indexes for death, marriage and divorce records become available for public reproduction after 24 months)
The minimum I will entertain is non certified issued copies cannot and should not follow the same strict liability as their certified counterpart.
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Advocacy?
After countless trips to the register of deeds, these guys [https://www.reclaimtherecords.org/] are starting to appeal to me. The question is do any of the genealogy groups (W.S.G.S., B.A.G.S, P.G.S, etc) support them? They should! The Wisconsin State Genealogical Society should be spearheading this as its part of their stated purpose (article 1, #6). Other allies, might be the Wisconsin Freedom of Information Council, and Wisconsin Transparency Project or the Office of Open Government.
Legal Conflicts with the existing law:
It’s also my belief that the Wisconsin law as it stands now conflicts with other laws. Some of those being;
-Wisconsin doesn’t have truly public vital records no matter the age. We have "quasi or defacto public records from before 1907. These records have the least restrictions, but still fall under the vital records laws of 69.21. This generally conflicts with state open records laws, and a set of national guidelines called the "model state vital statistics act" (NAPHSIS).
-the very law itself (69.20(4)) as it mentions the purpose of the law is to control direct access for the purposes of fraudulent use (they are also controlling indirect use of non fraudulent use where there is no fraud based justification) Most states make this sort of thing only a crime if you have fraudulent intent. In Wisconsin it is a strict liability felony, meaning the act of making the copy is a crime, regardless of your reason, which is largely inconsistent with its own purpose.
-Another portion of its own law that it conflicts with is that the cause of death is restricted to 50 years (outside of next of kin), whereas the rest of the record is not. (Basically prior lawmakers have concluded that after just 50 there is nothing deemed private anymore). The time periods should be consistently harmonized.
-It creates a functional copyright. It's a clash between federal copyright law (fair use) and state-level administrative privacy and security laws. It also creates a statutory monopoly on access created by law. They need to be no longer considered vital records at some (rolling window) point. With most government documents like court records etc, after some period of time has elapsed these documents are then considered public domain archival documents. (Like how it works with the census and other things.)
without guidance from a higher power like the attorney general)
Background:
This creates a bizarre situation where you can legally write down the information from the record (the name, date, and parents) and share that as much as you want, but you cannot share the image of the document itself. For a researcher, this is a major hurdle because the original handwriting and notes are often where the best clues are hidden. That is the classic "researcher’s wall." In genealogy and historical research, the transcript (the typed data) is often prone to errors, whereas the original handwriting contains the nuance—the "ink-on-paper" evidence—that researchers actually need to verify facts. Collaborating with people who are now out of state is also problematic when you cannot share electronic copies etc.
No other state nearest I can tell has this nonsense in the books, which I concluded from reading the state information section from the “International Vital Records Handbook”, by Thomas J Kemp, 7th ed (2017). For our convoluted nonsense see: https://docs.legis.wisconsin.gov/statutes/statutes/69/i/24/1/a
It is clearly absurd to restrict death records from 1908. And as years pass the absurdity expands. A fixed number of years before they are decriminalized makes a lot more sense to me as opposed to continually modifying this law.
The law in general is mostly a hold over from before there were ways to certify / add security features (embossments, watermarks, special paper) to the documents. The antiquated law doesn't really recognize the difference with uncertified copies (which are all that's really needed for research). For what it's worth, 69.24(1)(f) seems to give the original clue to the regulation's purpose which talks about "for the purpose of deception". That makes sense to nail someone with a felony in that case.
However it was amended in 1997 to make it even more stringent. To make it specifically illegal to make the document available to the public in electronic format. Yet by 1997, water marking and embossing were a norm for certified document issuing and acceptance by insurance companies for example: See: https://docs.legis.wisconsin.gov/1997/related/acts/210
The last revision was in 2015. (2015 Wisconsin Act 142 [2015 Assembly Bill 297]). Now pre 1907 records are exempted, but this was partly at Ancestry's request so they could legally offer copies of them in their original handwritten form (gotta love lobbying).
Other countries and states do it better. Some even digitize and host them on a government website after the time has elapsed. I’m not asking for that, I am asking for the minimal fiscal impact solution. But I would like an answer to how what Wisconsin is presently doing, is serving the people?
Related court case:
There was a recent federal court case, which could be argued as much the same scenario in Wisconsin. There was a FOIA request for veterans benefits files where the government agency prioritized handing taxpayer-funded data to a single commercial entity, but not to the public. Reclaim the records (a not-for-profit activist group of genealogists, historians, researchers, and open government advocates), sued the VA in federal courts and won.
https://mailchi.mp/reclaimtherecords/the-birls-database-goes-online-with-eighteen-million-us-veteran-records-and-free-foia-by-fax-system
When and if the laws ever get straightened out, I hope there is a consideration in balancing the public's right to information (transparency) against the individual's right to privacy (security). Right now the law appears very inconsistent and imbalanced. It also at least partly appears to focus on protecting a government asset by some inappropriately used legal mechanisms.
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