Richard H. McCoy Vermont Department of Health Center for Health Statistics June 2005

1. Transition in Vermont: Legislative and Legal Challenges for Vital Records Joint NAPHSIS / VSCP Meeting 2005 Richard H. McCoy Vermont Department of Health Center for Health Statistics June 2005

2. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Vermont: Population and Demographics • Population: 619,107 (2003 est) • Land Area: 9,250 square miles • Name: “Green Mountain State” • Tree: Sugar maple • In ratio of cows to people, Vermont has the greatest number of dairy cows in the country. • Vermont makes more maple syrup, marble, and monument granite than any other state. • Vermont's largest employer isn't Ben and Jerry's…it is IBM.

3. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Vital Records in Vermont: Background Town clerks were responsible for reporting vital statistics in each town’s annual report until 1857. Vital statistics then became the responsibility of the Secretary of State’s Office and Vermont’s first Vital Statistics report was issued in 1857. Vermont established a State Board of Health in 1886, which took on the role of keeper of the state’s vital statistics. Since that time, the agency has grown and developed into the Department of Health. Within the Department is the Division of Health Surveillance, which houses the Vital Records / Statistics Office -- births, deaths, marriages, divorces, civil unions and dissolutions, and ITOPS data. In 2003, there were 6,589 babies born to Vermont residents. (2002 saw our first increase in VT resident births since 1989!)

4. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records

5. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records Vermont is an “Open Records” state. This means: No tracking of requestors for certified copy requests. No requirement to use security paper. No system for notification or identification of fraudulent activities. Vital Records is not considered a central registry under current statutes (de-centralized system with 250+ town clerks). Paper system at town clerks level (little automation for certificate storage, tracking, or customer service). Town clerks under jurisdiction of Secretary of State’ Office; Vital Records/Statistics Office under jurisdiction of Department of Health.

6. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records The 2004 Vermont Legislative Session initiated two studies related to Vermont’s “open records” environment: Study #1: “Public Records, Privacy, and Electronic Access in Vermont.” Study #2: “Identity Theft Study: Committee Report.” Vital Records was involved with both studies and contributed to draft versions. Both reports were submitted to the 2005 Legislature in January, 2005.

7. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records “Public Records, Privacy, and Electronic Access in Vermont” • Act 158 required the Legislative Council to study the public records law, the justification for state record requirements, privacy concerns on dissemination of public records containing personal information, and use of public records. • Legislative Council conducted a thorough review of statute and case law, interviews with state agencies, and evaluated current archival and vital records management programs. • The study report included several “Legislative Alternatives” that the state could consider in conforming the public records law with technological advances and associated privacy concerns.

8. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records • Over 23 different “Legislative Alternatives” were included in the study, but only a small number could directly impact Vital Records. • Restrict or rescind the state’s open records policy to afford more protection to personal information. Limiting access to public records based on legitimate need or authorized use to prevent unnecessary disclosure of personal information. (This alternative is recognized as potentially unpopular.) • Require security features for the issuance and review of Vital Records documents. For example, require the use of safety paper, and proof and verification of identity as a condition of issuance of a birth certificate. (This alternative is recognized as potentially unpopular and expensive.)

9. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records • Prohibit or limit access to computer databases that store public records. This would prevent misuse or commercial use of personal information contained in the databases. Alternatively, limit access based on the requesting party’s intended use of the database. • Increase public records funding, staff, and storage space. The evaluation by the Legislative Council identified significant under funding and understaffing of records management offices in state agencies. (An increase in funding is unlikely.) 5. Reorganize the state’s records management structure, such as consolidating offices within the Secretary of State’s Office. However, the study did recommend excluding Vital Records from any consolidation.

10. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records “Identity Theft Study: Committee Report” • The 2004 Legislature enacted a bill that included a provision directing the Agency of Administration to “study the use of Social Security Numbers by both public and private entities, and develop proposals for reducing such use wherever possible, and protecting privacy and security when the numbers must be used.” • The agency created an Identity Theft Study Committee, including a representative from the Health Department (Vital Records). • Although the issue touched upon Vital Records (SSN is on the death certificate, which is a public document), the study focused on all uses of SSN, including databases, identification / tracking, etc.

11. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records • Findings and Recommendations of the Study Committee: • Committee considered laws enacted in over twelve other states relating to SSN regulation (particularly CA and IL). • Use of SSN in the administration of state programs is widespread: identified over 40 examples of its use by state agencies (and recognized to be an incomplete list). • Use of SSN is required under various state and federal laws, especially for the identification, qualification cross-matching, and reporting to various federal and state agencies. Most of the State’s automated systems developed in recent years use SSN. • The cost of identifying and implementing one common identifier to replace SSN would be daunting.

12. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records Recommended continuing the study for an additional year regarding the collection and use of SSN by State agencies, and costs associated with eliminating such usage. Used Illinois’ law as a model for writing a proposed statute on SSN usage, which included an exemption for State government (statute would only apply to private sector). However, the proposed statute included language for all state agencies to examine their use of SSN and to the extent possible limit or not require its use if not necessary for administration of the program. The proposed statute does the following:

13. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records • Prohibit public posting or display of a document with an SSN; • Prohibit the printing of SSN on any card used to access products/services; • Require encryption for transmitting SSN over the Internet; • Limit the use of SSN for accessing Internet web sites;  Prohibit the printing of SSN on materials to be mailed to individuals (unless required by law – but cannot be visible from outside the envelope). There are certain “grandfather” clauses in the proposal, but individuals would be allowed to request the entity to remove their SSN from usage. AG given the authority to investigate and prosecute alleged violations.

14. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Open / Public Records • “Public Records, Privacy, and Electronic Access in Vermont” • Delivered to the General Assembly in January 2005 and contents of the Study discussed within Legislative committees; • Some additional questions were raised, but no action proposed this year; • May see action on the alternatives in 2006 (depending on impact of Intelligence Reform Law). • “Identity Theft Study: Committee Report” • Delivered to the General Assembly in January 2005, but proposed legislation was not introduced this year; • Unpopular among some businesses due to the costs of compliance; • Another year of study, specifically on State use of SSN, is likely.

15. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Civil Unions

16. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Civil Unions July 1, 2000: New Vermont law granting same-sex couples in Vermont all the same benefits, protections, and responsibilities under the law as granted to spouses in marriage.  Civil Unions Civil unions (and dissolutions) must follow the same processes as marriage and divorce. The only minor changes were to the certificates’ field titles. For example, “Party A” and “Party B” instead of “Groom” and “Bride.” Civil unions has led to a number of legal questions, including parent “title” on birth certificates, parental rights after a dissolution (divorce), and recognition by other states.

17. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Civil Unions February 2005: Town clerk’s office contacted Vital Records. Two men had come into the office to apply for a civil union license. However, the two men had been married in Massachusetts in December 2004. Political issues: The couple was trying to adopt a Vermont child and their attorney said they needed a civil union in order to do so. Other issues: Could a civil union license be issued since the couple was already legally married in another state?  Vital Records decision: Yes, the couple can obtain a civil union license and maintain both a marriage from another state and a civil union simultaneously.

18. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Civil Unions Town clerk’s office and the couple’s attorney requested a written opinion to document the decision and supporting statute. VDH’s AAG issued an opinion that: The issue was not whether the Massachusetts marriage was valid or not. It was between two persons of the same sex and therefore was not a marriage defined by Vermont law, 15 VSA 8. Therefore, the prohibition against entering into a civil union would not apply. The couple could enter into a civil union with each other in Vermont. Outcome: The couple was granted a civil union license.

19. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Lessons Learned

20. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Lessons Learned Learn the relevant state and federal laws inside and out. Be the expert. Establish collaborative, close working relationships with your town clerks, district offices, and the Secretary of State’s Office. Make the time to volunteer and participate in any legislative workgroup or studies that may relate to vital records – don’t leave the task to others to represent your interests. Promote national standards at home – no need to reinvent the wheel.

21. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Legislative and Legal Challenges: Lessons Learned • For almost all scenarios, someone else out there has probably encountered the same or similar problem: don’t be afraid to contact your counterparts. • Maintain a file on legal decisions, studies, and “best practices” from other states. These are invaluable to have at hand for ad hoc discussions with managers, legislators, and the media. • Be patient! Changes to Vital Records’ laws and processes will meet institutional resistance – it’s difficult to change 100+ years of tradition. • Make friends with your Department and Agency legal counsel, especially the Attorney General’s Office!

22. Vermont Department of Health NAPHSIS / VSCP Meeting June 2005 Contact Information / Resources Richard H. McCoy Public Health Statistics Chief Vermont Department of Health Phone (802) 651-1862 Email: rmccoy@vdh.state.vt.us VDH Web site: www.healthyvermonters.org