Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department ( 2014 )

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Patrick A. Shoulders Joseph H. Harrison, Jr.
Jean M. Blanton E. Lee Veazey
Evansville, Indiana Evansville, Indiana
ATTORNEYS FOR AMICUS CURIAE INDIANA
COALITION FOR OPEN GOVERNMENT
Kurt A. Webber Oct 07 2014, 11:38 am
Carmel, Indiana
ATTORNEYS FOR AMICUS CURIAE HOOSIER STATE
PRESS ASSOCIATION FOUNDATION
Steven M. Badger
Leah N. Wilson
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE STATE OF INDIANA
Gregory F. Zoeller
Attorney General of Indiana
Stephen R. Creason
Anne Mullin O’Connor
Deputy Attorneys General
Indianapolis, Indiana
In the
Indiana Supreme Court
No. 82S04-1401-PL-49
EVANSVILLE COURIER & PRESS AND RITA
WARD,
Appellants (Plaintiffs below),
v.
VANDERBURGH COUNTY HEALTH
DEPARTMENT,
Appellee (Defendant below).
Appeal from the Vanderburgh Circuit Court, No. 82C01-1208-PL-409
The Honorable Carl A. Heldt, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 82A04-1302-PL-57
October 7, 2014
Massa, Justice.
This case presents the issue of whether the certificates of death that doctors, coroners, and
funeral directors file with county health departments pursuant to Indiana Code chapter 16-37-3 are
public records that a county health department must provide public access to under the Indiana
Access to Public Records Act. We believe they are, and therefore we reverse the trial court.
Facts and Procedural History
A. The Creation of Indiana’s Death Record System
In 1881, preventable diseases caused 25% of deaths in Indiana. 19 Brevier Legis. Rep. 200
(1881). In addition to the obvious human cost, those deaths created an adverse economic impact
on the state estimated at over $15 million dollars each year. Id. In an effort to ameliorate this
condition, Senator Flavius J. Van Vorhis of Marion, Indiana proposed legislation to create a State
Board of Health.1 Id. at 83. Senator Van Vorhis drafted his bill “upon the experience of twenty-
1
Senator Van Vorhis (1840–1913) served in the General Assembly during the 1881 and 1883 sessions.
“Van Vorhis, Flavius Josephus,” in 10 The National Cyclopaedia of American Biography 393, 393 (New
York, James T. White & Co. 1900). As a Civil War veteran trained in both medicine and law, he was
uniquely suited to understand Indiana’s public health problems and address them through legislation. Id.
Despite Senator Van Vorhis’s expertise, this bill got off to a rocky start; it failed on third reading
in a close vote (19–26) but upon reconsideration, was returned to committee. 19 Brevier Legis. Rep. 111
(1881). When it came back to the floor, Senator Van Vorhis spoke at length in its favor, decrying the dearth
of existing legislation to protect and promote the public health and citing statistics to demonstrate the
prevalence and impact of preventable disease. He concluded his remarks by saying:
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two States having similar laws,” id. at 84, and charged the Board to “endeavor to make intelligent
and profitable use of the collected records of deaths and of sickness among the people” and
recommend legislation to promote Hoosiers’ health and well-being. 1881 Ind. Acts ch. 19, § 2.
To that end, the new law empowered the Board to create and supervise a “system of registration
of births, deaths and marriages.” Id. at § 7.
It also established county boards of health designed to work in partnership with the State
Board: “The Board of Health of each county shall act in conjunction with the State Board of
Health, and it shall be the duty of the Secretary of such County Boards . . . to report such facts and
statistics as may be required under instructions from, and according to, forms and blanks furnished
by said Board.” Id. at § 9. When a death occurred, the attending physician or caregiver was
required to report the fact and cause of death to the board of the applicable locality. Id. at § 10. A
physician making such a report was required to submit “a certificate of the cause of death, and
such correlative facts as may be required in the blank forms furnished.” Id. And these death
certificates were public records:
It shall be the duty of the Board of Health of each county to keep a
complete record, according to the form prescribed by the State
Board, of all marriages, births and deaths reported to them under the
But does it speak well for the intelligence and business sense of the
Legislative Department of the State that she is so far behind in all those
efforts to protect life and health, and prevent the occurrence of those
calamities that increase each year the number required to be cared for by
the public charities of the State, and of the Counties of the State? . . . I can
not bring myself to believe that any Senator upon this floor, when he
comes to consider the subject in the light of the knowledge of the year
1881, will require argument to convince him that the necessity exists for
the enactment of some such law as that proposed by this bill for the
protection of life and health.
Id. at 201. In the vote immediately following these remarks, the bill passed 36–3. Id.
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provisions of this act, and such record shall be open to the inspection
of any citizen without fee.
Id. at § 12. Over the decades, the General Assembly amended this statutory scheme many times,
but the county boards of health remained responsible for collecting, retaining, and producing
individual death certificates, while the State Board compiled and analyzed the records and
recommended appropriate public policy.
B. Indiana’s Contemporary Death Record System
Indiana’s death record system begins with the death certificate, which contains data used
to generate a variety of other records. A certificate of death is created pursuant to Indiana Code
section 16-37-3-3(a) (Supp. 2013),2 which provides:
The physician last in attendance upon the deceased or the person in
charge of interment shall file a certificate of death or of stillbirth
with the local health officer of the jurisdiction in which the death or
stillbirth occurred. The local health officer shall retain a copy of the
certificate of death.
It must include the decedent’s cause of death as certified by the attending physician or local health
officer. Ind. Code §§ 16-37-3-5 (2008 & Supp. 2013), -6(b) (2008). Since January 1, 2011, the
person filing the death certificate must use a state-created electronic database, the Indiana Death
Registration System, “to file a certificate of death with the local health officer of the jurisdiction
in which the death occurred.” Ind. Code § 16-37-3-3(b); see also Ind. Code § 16-37-1-3.1 (Supp.
2013) (establishing the Indiana Death Registration System).
2
Unless otherwise indicated, we cite herein the relevant statutes as they are currently in force. Certain
cosmetic amendments went into effect on July 1, 2012, see P.L. 122-2012 §§ 3–4, 2012 Ind. Acts 2157
(amending Ind. Code § 37-16-3-3 & -5), but those amendments have no bearing on our decision today.
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Once the death certificate is filed, the local health officer must use the information thereon
to “make a permanent record” that does not include the cause of death. Ind. Code § 16-37-3-9(a)
(2008). The permanent record, with the exception of the decedent’s Social Security number, “shall
be open to public inspection.” Ind. Code § 16-37-3-9(b). The local health officer must also report
the death to the Indiana State Health Department within five days. Ind. Code § 16-37-1-3.1(e)
(Supp. 2013).
Finally, upon request of a qualifying individual, the “local health officer shall provide a
certification of birth, death, or stillbirth registration.” Ind. Code § 16-37-1-8(a) (2008). The
requesting party must demonstrate he has “a direct interest in the matter” and “the certificate is
necessary for the determination of personal or property rights or for compliance with state or
federal law.” Id. Depending on the requesting party’s preference, the local health officer has the
discretion to include or omit “information concerning the cause of death.” Ind. Code
§ 16-37-1-8(d) (2008).
C. Rita Ward’s Public Records Request
In June 2012, Rita Ward sent a letter to the Vanderburgh County Health Department
requesting “copies of records created under IC [§] 16-37-3-3 maintained by the Vanderburgh
County Health Department for the month of May, 2012.” App. at 20. The Department denied her
request, stating: “pursuant to I.C. [§] 16-37-1-10, in order to obtain a copy of a certificate of death,
the purchaser must have a direct interest in the matter or the information must be necessary for the
determination of a personal or property right or for the compliance with state or federal law.” App.
at 21. Indiana Code section 16-37-1-10(a) (2008) provides, in pertinent part:
The records and files of the division of the state department
concerning vital statistics are subject to this article and rules of the
state department. Data contained in the records and files may be
disclosed only as follows:
(1) The state registrar shall permit inspection of the records or issue
a certified copy of a certificate or part of a certificate only if the state
registrar is satisfied of the following:
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(A) That the applicant has a direct interest in the matter
recorded.
(B) That the information is necessary for the determination
of personal or property rights or for compliance with state or
federal law.
...
(2) The state department may permit the use of data contained in
vital statistical records for research purposes only, but no identifying
use may be made of the data.
(3) In any extraordinary case that the state registrar determines is a
direct tangible and legitimate public interest.
The Department’s letter further stated Ward was free to come inspect any “permanent record”
created pursuant to Indiana Code section 16-37-3-9(a). App. at 22. But permanent records do not
contain cause of death information. See Ind. Code § 16-37-3-9(a) (specifying the content of a
permanent record).
Ward sought an advisory opinion from the Public Access Counselor of the State of Indiana.
The Counselor issued an opinion concluding the Department’s denial of Ward’s request was
permissible, but one week later, he issued an amended opinion stating the opposite:
It should be noted that I.C. § 16-37-1-10 would only apply to records
maintained by the State Department of Health. Thus, the
Department could not deny your request pursuant to this section of
the statute, as it is not a state department . . . . From what the law
currently provides, while the State Department of Health could deny
a similar request under I.C. § 16-37-1-10, the information as
maintained by the local health department has not been afforded the
same protections.
App. at 26–27.
The following day, the Evansville Courier & Press newspaper requested access to all
Vanderburgh County death records dating from May 2012 that were “created under IC
[§] 16-37-3-3.” App. at 28. The Department denied that request, stating it did “not have any
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documents to copy which would be responsive” because the Indiana Death Registration System
“eliminated all paper copies and . . . is maintained solely by the Indiana State Department of
Health.” App. at 29. Thus, the Department claimed: “Under Indiana law, the County Health
Department has no paper documents which it retains concerning I.C. [§] 16-37-3-3.” App. at 29.
The Department noted the Courier & Press was not qualified to request records pursuant to Indiana
Code section 16-37-3-8, and suggested the Courier & Press direct its request to the State
Department of Health. Of course, as the Courier & Press likely could not satisfy the requirements
of Indiana Code § 16-37-1-10(a), any request it made to the State Department likely would have
been fruitless.
Ward and the Courier & Press sued the Department to obtain access to the records they
sought. They moved for summary judgment, arguing (1) Indiana Code section 16-37-3-3 required
the Department to maintain a copy of each death certificate filed, (2) those death certificates were
public records covered by the Indiana Access to Public Records Act, Ind. Code ch. 5-14-3, and (3)
as there was no provision exempting the death certificates from APRA, the Department’s denials
of their requests were unlawful. The trial court denied their motion and instead entered judgment
in favor of the Department, concluding:
The language set forth in I.C. [§] 16-37-3-3 conflicts with the
specific language in I.C. § 16-37-1-8 and I.C. § 16-37-1-10
regarding who may legally obtain a copy of a death certificate.
However, the statutory provision requiring the retention of a
permanent record of deaths by all health departments in Indiana,
including the County Health Department pursuant to I.C.
[§] 16-37-3-9, clearly demonstrates the Indiana General Assembly’s
intent to allow the public to inspect and copy certain death record
information, but not “cause of death” information . . . unless the
person seeking a copy of a death certificate can meet the statutory
requirements set forth in I.C. § 16-37-1-8 or I.C. § 16-37-1-10.
App. at 14. The plaintiffs appealed, and in a published opinion, a unanimous panel of our Court
of Appeals affirmed the trial court. Evansville Courier & Press v. Vanderburgh Cnty. Health
Dep’t, 993 N.E.2d 302, 306 (Ind. Ct. App. 2013).
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We granted transfer. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 2
N.E.3d 687 (Ind. 2014) (table); Ind. Appellate Rule 58(A).
Standard of Review
The trial court must grant a motion for summary judgment “if the designated evidentiary
matter shows that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We review a trial court’s ruling
on a motion for summary judgment using that same standard, S. Shore Baseball, LLC v. DeJesus,
11 N.E.3d 903, 907 (Ind. 2014), and although the trial court’s specific findings of fact and
conclusions of law assist our review, they are not binding upon us. Kesling v. Hubler Nissan, Inc.,
997 N.E.2d 327, 331–32 (Ind. 2013). Pure questions of law, like the issues of statutory
construction we address here, are particularly appropriate for summary resolution, HDNet LLC v.
N. Am. Boxing Council, 972 N.E.2d 920, 922 (Ind. Ct. App. 2012), trans. denied, 980 N.E.2d 322
(Ind. 2012) (table), and we review them de novo. Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind.
2014).
Death Certificates Are Public Records and May Be Freely Obtained from the County
Health Department.
Appellants argue the trial court’s ruling was erroneous because (1) although the
Department claims it does not have the requested records, Indiana Code section 16-37-3-3 requires
the Department to maintain a copy of each death certificate filed, and (2) those death certificates
are “public records” subject to APRA and not covered by any statutory exemption. We agree.
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A. County Health Departments Must Keep a Copy of Each Death Certificate Filed.
In response to the Courier & Press’s request for death certificates, the Department stated it
could not produce the certificates because it did not have them. But Indiana law states “the
physician last in attendance upon the deceased or the person in charge of interment shall use the
Indiana death registration system established under IC 16-37-1-3.1 to file a certificate of death
with the local health officer of the jurisdiction in which the death occurred,” Ind. Code § 16-37-3-
3(b) (emphasis added), and: “The local health officer shall retain a copy of the certificate of
death.” Ind. Code § 16-37-3-3(a) (emphasis added).
Thus, just as in 1881, each county health department has an unambiguous statutory
obligation to collect and maintain death certificates. Then, of course, such records were written
on paper, copied by hand, and filed in boxes or cabinets. Now, we have modernized the process;
the records are typed on computers, viewed on screens, stored on a server, and printed out on
machines. This change is one of form, however, not substance. The essence of the law—that the
local health department must collect and maintain death certificates—remains the same regardless
of the means used to comply with it. Therefore, if the Department truly does not have the death
certificates, it is in violation of Indiana Code section 16-37-3-3(a).
B. Death Certificates Are Public Records for the Purpose of APRA.
Appellants contend death certificates, including the cause of death information thereupon,
are public records and therefore subject to APRA, which provides: “Any person may inspect and
copy the public records of any public agency during the regular business hours of the agency.”
Ind. Code § 5-14-3-3(a) (2010 & Supp. 2013). APRA is intended to ensure Hoosiers have broad
access to most government records:
A fundamental philosophy of the American constitutional form of
representative government is that government is the servant of the
people and not their master. Accordingly, it is the public policy of
the state that all persons are entitled to full and complete information
regarding the affairs of government and the official acts of those
who represent them as public officials and employees. Providing
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persons with the information is an essential function of a
representative government and an integral part of the routine duties
of public officials and employees, whose duty it is to provide the
information. This chapter shall be liberally construed to implement
this policy and place the burden of proof for the nondisclosure of a
public record on the public agency that would deny access to the
record and not on the person seeking to inspect and copy the record.
Ind. Code § 5-14-3-1 (2010). Thus, we apply a presumption in favor of disclosure, and the burden
rests upon the Department to rebut that presumption. Indianapolis Convention & Visitors Ass’n,
Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 212 (Ind. 1991).
Both parties agree that Ward and the Courier & Press are “persons” and that the Department
is a “public agency” as those terms are defined in APRA.3 But the Department contends death
certificates are not “public records” pursuant to Indiana Code section 5-14-3-3 but rather
confidential records pursuant to Indiana Code section 5-14-3-4(a)(1), which exempts from
disclosure any records “declared confidential by state statute.” The Department cites two statutes
it believes declare death certificates confidential: Indiana Code sections 16-37-1-8 and -10. We
consider each in turn.
1. Section 8
Section 8 prohibits a local health officer from providing “a certification of . . . death . . .
registration” unless the officer “is satisfied that the applicant has a direct interest in the matter”
and “determines that the certificate is necessary for the determination of personal or property rights
3
APRA defines “person” as, among other things, “an individual” or “corporation.” Ind. Code § 5-14-3-2(l)
(Supp. 2013). Ward is an individual, and the Courier & Press is the business name of the Evansville Courier
Company, an Indiana corporation. APRA defines “public agency” as, among other things, “any board . . .
[or] department . . . exercising in a limited geographical area the executive [or] administrative . . . power of
the state or a delegated local governmental power.” Ind. Code § 5-14-3-2(n). The Department, as a local
health department, “operate[s] as an agency of local government administratively responsible to the
appropriate county or city executive.” Ind. Code § 16-20-1-2 (2008).
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or for compliance with state or federal law.” Ind. Code § 16-37-1-8(a) (2008). Nearly forty years
ago, however, our Court of Appeals—as fate would have it, in a case involving substantially the
same parties we find before us today—concluded a death certificate is not the same as a
certification of death registration. Evansville-Vanderburgh Cnty. Dep’t of Health v. Evansville
Printing Corp., 165 Ind. App. 437, 441, 332 N.E.2d 829, 832 (1975).
In Evansville Printing, an Evansville Press reporter requested a death certificate from the
Evansville-Vanderburgh County Department of Health. Id. at 438, 332 N.E.2d at 830. When his
request was denied, he asked for a “Local Certified Record of Death . . . showing the cause of
death.” Id. The local official likewise refused to provide that record, claiming information
concerning a decedent’s cause of death was confidential. Id. at 440, 332 N.E.2d at 831. The
Department then initiated a declaratory judgment action, and the trial court concluded the
reporter’s request should have been granted. Id. at 438, 332 N.E.2d at 830.
The Department appealed, but a unanimous panel of our Court of Appeals affirmed the
trial court. Id. at 445, 332 N.E.2d at 834. It concluded death certificates were “public records” for
the purpose of the Hughes Anti-Secrecy Act, the predecessor to APRA. Id. at 443, 332 N.E.2d at
833. It also determined the death certificate and the certificate of death registration were two
different documents. Id. at 441, 332 N.E.2d at 832. The upshot of this decision was that the
Department had to give the newspaper a copy of the death certificate, which included the cause of
death.4 Id. at 445, 332 N.E.2d at 834.
4
When Evansville Printing was decided, Indiana law stated the “local health officer shall provide a
certificate of birth, death, or stillbirth registration upon request by any person.” Evansville Printing, 165
Ind. App. at 441, 332 N.E.2d at 831 (quoting Ind. Code § 16-1-19-1 (1971) (repealed by P.L. 2-1993 § 209,
1993 Ind. Acts 1109)). Accordingly, the Evansville Printing panel also held the Department had to give
the newspaper a copy of the certificate of death registration, but that document did not have to contain cause
of death information. Id. at 444–45, 332 N.E.2d at 834.
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We see no reason to reach a different conclusion today. As we read the statute, the General
Assembly has drawn a distinction between a certificate of death, which is intended to record cause
of death data for use by health officials, and a certification of death registration, which is intended
to authenticate the death for the purpose of property disposition. The former is a public record,
while the latter is confidential. And although his opinion is not binding upon us, we are gratified
to note our reading is consistent with the Attorney General’s interpretation of these statutes.
Availability of Death Certificates and Information from those Certificates to the Public, 1998 Op.
Ind. Att’y Gen. No. 1 (Jan. 5, 1998). Thus, we hold Section 8 does not operate to exempt death
certificates from APRA’s disclosure requirements.
2. Section 10
Section 10 prohibits the state registrar from permitting a member of the public to inspect
or copy “the records and files of the division of the state department concerning vital statistics”
unless the registrar is satisfied “the applicant has a direct interest in the matter recorded” and “the
information is necessary for the determination of personal or property rights or for compliance
with state or federal law.” Ind. Code § 16-37-1-10(a)(1) (2008) (emphasis added). A plain reading
of this language, however, demonstrates that it applies to the State Department of Health, not to
local health departments. Thus, we hold Section 10 does not operate to exempt death certificates
retained by local health departments from APRA’s disclosure requirements.
Of course, this conclusion creates an apparent inconsistency. Under our holding today, “a
death certificate request with no showing of direct interest or necessity made to the state registrar
would be denied while that same request would be granted by a local health officer.” Evansville
Courier & Press, 993 N.E.2d at 305. But we cannot say with certainty that this madness has no
method. The General Assembly could have intended to distribute the administrative burden of
record production among local health departments rather than letting it fall solely upon the State
Health Department. Indeed, it has done likewise with regard to other public records; any citizen
may obtain criminal records from a county clerk, Ind. Code § 10-13-3-32 (2010), but he may not
obtain those same records from the State Police unless he meets certain statutory criteria. Ind.
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Code § 10-13-3-27(a) (2010 & Supp. 2013). Accordingly, we decline the Department’s invitation
to ignore the plain language of the statute and second-guess the legislature’s judgment.
* * *
In our society, death is an intimate and personal matter. We recognize that public
disclosure of the details of a decedent’s death may cause pain to his family and friends. We are
also mindful of the importance of open and transparent government to the health of our body
politic. Our General Assembly has considered these competing interests and, insofar as we can
determine, concluded that the public interest outweighs the private. Indeed, in recent history, it
has rejected three bills that would have exempted death certificates from APRA. See H.B. 1067
§ 11, 114th Gen. Assem., 2nd Reg. Sess. (Ind. 2006); H.B. 1551 § 9, 114th Gen. Assem., 1st Reg.
Sess. (Ind. 2005); H.B. 1540 § 8, 113th Gen. Assem., 1st Reg. Sess. (Ind. 2003). Even if we
wished to rebalance the scales, it is beyond our power to do so.
Conclusion
We reverse the trial court and remand this case for entry of summary judgment in plaintiffs’
favor. Upon remand, the trial court should also determine whether to award plaintiffs their
attorney’s fees and if so, how much.
Rush, C.J., and Dickson, Rucker, and David, JJ., concur.
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