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October 19, 2013

State reverses public records refusal

Citing public health concerns prompts release

TERRE HAUTE — The fatal case of West Nile Virus in Vigo County comes amid a larger state debate about public access to death certificates.

On Wednesday, the Tribune-Star asked the Marion County Health Department for a copy of a death certificate from a Vigo County man who died in an Indianapolis hospital. A recent obituary published in the Tribune-Star stated the deceased died “following complications from West Nile Virus.” An infectious disease doctor had told the family that test results were positive for West Nile Virus, the family has confirmed.

However, on Thursday, Marion County health officials declined to provide the death certificate to the newspaper, citing Indiana law and an August Indiana Court of Appeals ruling in which a panel of judges stated that death certificates were not public records unless the person seeking the certificate demonstrates a direct interest and necessity to receive the document.

On Friday, Luke Britt, Indiana Public Access Counselor, told the Tribune-Star he believed the newspaper could show a “legitimate” reason for receiving the death certificate in the interest of public health due to indications of a local death resulting from West Nile Virus.

“I would think that would be a legitimate reason to seek the record,” Britt said in a telephone interview.

The Tribune-Star resubmitted a public records request to Marion County’s health department Friday but was again declined on the same grounds — Indiana law and the August appeals court decision.

The Indiana Attorney General, Greg Zoeller, has recently asked the Indiana Supreme Court to review that appeals court decision, arguing that death certificates are public records. Zoeller, in a friend of the court brief to the Supreme Court, stated the appeals court wrongly combined “certificates of death” with “certifications of death registration” in reaching its decision.

Death certificates are documents filed by doctors, coroners or funeral directors with county health departments and includes causes of death. Certifications of death registration are official records of death that do not contain causes of death and are often used to obtain life insurance payments or for other property-related reasons, according to Zoeller’s brief.

Nearly 40 years ago, in 1975, another Hoosier appeals court ruled that a death certificate is not the same as a certification of death and that death certificates should be public documents, according to the AG’s friend of the court brief. The state legislature has passed nothing to change that view, the brief argues, and, therefore, death certificates should remain accessible public documents.

“Access to public records are vitally important to our republican form of government…and this split authority regarding the [public records law] should be resolved” by the Supreme Court, Zoeller’s brief concludes.

Steve Key, general counsel for the Hoosier State Press Association Foundation, agrees with Zoeller, noting that the recent appeals court ruling has confused the issue of whether death certificates are public documents or not.

“There are now two conflicting appellate court arguments,” Key said. “We believe that the first court decision [finding death certificates were public documents] was correct based on the state statutes…and from a public policy standpoint.”

Access to information concerning causes of death can alert authorities or the public to clusters of diseases or health problems that might require public policy action, he said.

Also Wednesday, the Indiana State Department of Health, after announcing the state’s first fatal case of West Nile Virus, refused to reveal the county of residence of the person who died. On Friday, however, the ISDH reversed that position and revealed the death took place in Vigo County. An agency spokeswoman told the Tribune-Star the change emerged from a review of past ISDH handling of West Nile information.

Reporter Arthur Foulkes can be reached at 812-231-4232 or arthur.foulkes@tribstar.com.

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