A DISCUSSION OF LAW AND JOURNALISM

Born Identity: Are Birth Records Public Information?

By Tara Krieger

“Yes, the president was born here – but no, we can’t show you proof.”

Such has paradoxically been the policy of the Aloha State, which claims it has nothing to hide, but it must keep the official record of President Obama’s birth concealed. The policy has many Americans perplexed, particularly those who have been spreading rumors to the contrary. Aren’t all birth records publicly accessible, they say?

Not in Hawaii, where strict privacy laws mandate the confidentiality of vital information on the Islands. Perhaps Hawaii’s laws are a little too strict, as some members of the state legislature have come to believe. A handful of legistors have introduced a bill in Hawaii’s House of Representatives specifically to allow access to the birth records of President Obama and any other “officials who require United States citizenship to hold public office.”

The bill is intended to quiet inquiries by so-called “birthers” who cling to the belief that Obama was born abroad and thus Constitutionally ineligible to hold the chief executive office. It also could provide a way to bring money into a state facing a large budget deficit: the State will charge one hundred dollars (plus nominal expenses) to produce the records.

“The state department of health has continued to be inundated with requests from various individuals and parties for information regarding President Barack Obama’s birth,” reads the opening section of the bill. “The continually increasing number of requests have [sic] caused the department of health distress as state resources, including employee time and energy, have to be diverted from other department responsibilities. It may be the case that if requesters were to have access to the actual birth records of officials who require United States citizenship to hold public office, any ambiguity surrounding the issue may be dispelled.”

Should the bill be passed, it would represent a departure from Hawaii’s previous privacy law. In the absence of someone with “direct and tangible interest” in the record (i.e., a close family member) or a court order, the State’s privacy law prohibits disclosure of an individual’s birth information without that person’s consent. The State of Hawaii has cited this law as its reason for refusing demands for documents in the past – though the department of health has attempted (unsuccessfully) to placate the masses with a Web page responding to frequently asked questions.

We at LASIS were curious if Hawaii’s bar on the release of birth records (“[t]o protect the integrity of vital statistics records [and] to ensure their proper use”) was typically how states handled such matters, or if they were peculiar to Hawaii. A quick survey of other state policies could put Hawaii’s actions into context.

Every citizen may write to his birth state to obtain copies of their own birth certificate. But beyond that, states seem to vary on who may access the information and what information is available.

Pennsylvania (this author’s birth state) has a law comparable to Hawaii’s. It does not consider birth records “public information” under its Right-to-Know Law, and restricts access to close relatives or a person with power of attorney.

New York also excludes birth records from its Freedom of Information Law. Certified copies of birth certificates can only be issued to a parent or “other lawful representative,” upon “specific request” from the government, or by court order.

Other states limit access to birth records to specific circumstances. In Kansas (if, for instance, one were interested in the birth records of the President’s mother) an applicant must have a “direct interest in the matter recorded,” and “the information contained in the record is necessary for the determination of personal or property rights.” In other words, birth records are only available in situations such as when relatives are litigating over their inheritance. The casual researcher would probably be kept out.

But there is a fine line between an individual’s right to privacy and the public’s right to information, for, say, educational purposes.

The California Department of Public Health has found a way to straddle that line. Only close relatives, representatives of that person’s estate, governmental agents conducting official business, or those mandated by a judge may obtain an “authorized” copy of a birth (or death) certificate; all other parties may apply for an “informational” copy, with the disclaimer, “INFORMATIONAL, NOT A VALID DOCUMENT TO ESTABLISH IDENTITY.” (The fee is a mere sixteen dollars.) New Jersey has a similar policy – distinguishing between “certified” copies of records for family members, and “non-certified” copies (with more limited information) for all others.

The distinction between official and unofficial birth documents has allowed those seeking birth records for genealogical or other academic purposes to further their research. Would a non-certified/informational copy satisfy the masses when it comes to a legal challenge on the presidency? Hard to say.

Many states with a closed policy on vital statistics also generally have some sort of time limit on how long the record stays private – and genealogy projects such as Ancestry.com have become a storage bank for that now public information. In Hawaii, the time limit is seventy-five years – meaning that even if Hawaii doesn’t change its law, the circumstances surrounding Obama’s birth will be made public in 2036 – some twenty years (or more) after he will have left the White House.

There is a loophole. Because a court order is listed as a way to obtain a a birth record, the “birthers” could get around a privacy law by convincing a judge in Hawaii to compel the release of Obama’s information. This also appears a viable way to resolve a controversial issue without going through the legislative process.

Still, because there is precedent in other states’ laws for more open policies, the Hawaii bill – which only affects public officials whose birth records are necessary to hold office – could stand a chance of becoming law. It may even stand under the Hawaii State Constitution, which contains a clause protecting “the right of the people to privacy” unless there is a “compelling state interest.” After all, what is more compelling than ensuring that the individual who pledged to “preserve, protect, and defend the Constitution of the United States” is himself obeying the U.S. Constitution?

Comments

6 Comments »

6 Responses

  1. Ciara says:

    Great article!

  2. Trevor Timm says:

    As far as the law goes, this is a very well research article. However, you make it seem like there’s an actual controversy among non-crazy people that Obama wasn’t born in Hawaii. Leading with that anonymous ‘no proof’ quote and not refuting it with the giant piles of actual evidence is misleading.

    And if you’re going to talk about Hawaii’s law that say only you can get your own proof of birth, you should probably mention that in 2008, Obama requested a copy of his birth certificate from Hawaii, who then sent it to him, and his campaign released the copy publicly: http://www.factcheck.org/elections-2008/born_in_the_usa.html

    It’s the exact same document that any other resident of Hawaii would get if they requested their own to get a driver’s license or a passport.

  3. Tara Krieger says:

    Good point, Trevor. I’m completely with you that there probably shouldn’t even be a debate. I probably should’ve mentioned, also, that there’s a bound birth registry index (see the FAQ link) that *is* open to the public if you’re willing to go to Hawaii and check it out, and there is a record of an “Obama, Barack Hussein II” being born that day. But it’s not official enough, I guess.

    Indeed you are correct that Obama has circulated a copy of his birth certificate on request during the campaign and therafter, but the radical right has been crying “forgery,” or that it’s been doctored. It seems the only way they’ll be satisfied is if Hawaii releases a copy on its own volition (though something tells me even that won’t be enough for some people).

  4. jtx says:

    I’m afraid that Trevor is misinformed. The reputed “copy” of Obama’s BC posted at different locations (some of which have differing images!!!) is not a copy of an original BC at all. It is a manufactured (e.g., Photoshopped) digital image of what his backers wish were his BC but is without a good bit of requisite information.

    The document it purports to represent apparently (per the recent HI governor) does not exist in HI or perhaps anyplace else.

    It is not the BC itself nor the locale of birth that is the issue, but rather the Constitutionally eligiility of the man himself since he has told everyone publicly that his father was an alien from Kenya. It is the eligibility that is the issue. For definitive information about same, check the many fine legal essays on the matter at:

    http://puzo1.blogspot.com/

  5. Leigh T. says:

    Clearly, Trevor is a left wing-er. Jtx is right wing-er. The author Krieger got it just about right.

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