The Line Between the Living and the Dead

Genealogists know that none of our research would be possible without access to information about the people who came before us. Maybe that’s why they call them vital records: because we really need them! Yet just as we take care to guard our own private information, we also have systems in place to honor the privacy of our ancestors… for a while, anyway. In this issue we explore the laws and practices surrounding the records genealogists rely on, from U.S. Census records to military files and even the Freedom Of Information Act (FOIA). The truth is out there, but sometimes you have to fill out a lot of paperwork to get it.

The dead have no rights, or at least very few. So how many years of privacy should the average American expect when it comes to their vital records? The question arises when we consider where the National Archives draws the line between the living and the dead. 

The records of the United States Census Bureau are kept private for 72 years before being released to the public. For a long time, many genealogists were told that the 72-year rule for the census reflected the average lifespan of an American citizen, so the timespan would presumably protect the privacy of anyone 72 or under. There’s a certain logic to this story, but no real evidence it’s true. For starters the lifespan of the average American born in 1890 was under 50 years of age, making a 72-year holding period superfluous. Even in 1950 the life expectancy of the average American was only 68.2 years. So what explains it?  

For the first 130 years of its existence the U.S. Census Bureau stored its thousands of pages of paper records in the basement of the U.S. Commerce building in Washington, D.C. But in 1921 a fire broke out there, destroying most of the 1890 Census records. The administrators realized they needed a better solution.

This is the earliest known painting of a census in progress, painted by American artist Francis William Edmonds in 1854. The head of the household, standing next to his wife and infant, appears to be uneasy at the prospect of enumerating his rather large family. Some of his children even seem to be hiding from the census-taker. But the image of George Washington above the mantel suggests that a good American would never tell a lie.

In 1942 the United States Census Bureau transferred its files (which start with the first U.S. Census in 1790) to the National Archives. Up until this point all census records had been available to the public, but the newly-created National Archives wanted to protect the privacy of citizens, so it found a compromise, making census records available once a certain amount of time had passed. Censuses are taken every ten years, and they could have chosen any decade they wanted. So why did they choose 1870 and not, say, 1860? We don’t know. Documentation from the time just reveals that they picked 1870, which was 72 years prior to their current day, and that was that. We don’t know if they had a certain average lifespan in mind. It may have just “felt right.” 

The 72-year rule is unique to the U.S. Census. There is a lot of variation in the privacy rules of other types of federal records; for instance, U.S. military records remain private for 62 years. Other records are private for 50. State-held vital records are governed by their own rules. Privacy laws regarding birth and death certificates vary by state and sometimes even by city---and they vary widely. Kentucky requires all in-state births be made public within one year of the birth, for instance, while in Idaho they must remain private for 100 years.

The life expectancy of the average American rose steadily in the 20th century, peaking in 2014 at the age of 78.9, where it remains in 2020. Does this mean the 72-year rule will have to be updated decades from now? Possibly, though nobody knows what the upper limit on American life expectancy may be. That data point has yet to be determined. 

In the meantime, set your alarms for April 1, 2022. That’s when the 1950 U.S. Census records are due to be released. Genealogists are already preparing.

Weekly Discoveries

1. Learn how to utilize alternative records and resources with the virtual genealogy program “Beyond Vital Records” available through the Hunterdon County Historical Society on 27 October 2020.
2. The age of reckoning - it is more than curiosity that fuels our need to learn more about our roots
3. If you have Norwegian ancestry you may be interested in the new Norway, Church Records, 1812-1938 collection recently introduced by Ancestry, which includes Lutheran church records coinciding with the introduction of templated registers.

Not All Records Are Free

Is there a document you’ve been trying to get a hold of? Here are a few things to know about working the federal records system. The Freedom of Information Act (FOIA) has been in effect since 1967 and affords the public the right to request records from federal government agencies.  Under the act, agencies are required to disclose any requested information with the exception of nine exemptions, which are intended to protect personal privacy, law enforcement and privileged communications which falls under national security.

It is possible to gain access to closed (those encumbered by privacy restrictions) federal census records.  The United States Census Bureau will release the more modern files in the form of official transcripts. However, this option is only available to the individuals named in the record, their heirs or legal representatives.  Unlike the publicly-available records, there is a fee associated with obtaining the restricted records, and as they are protected by law and, thereby, exempt from the Freedom of Information Act.

Understandably, United States military records are restricted and only limited information is available to the general public.  Fortunately, military personnel records become archival records after 62 years and are available to the general public.  This is possible due to a schedule agreement between the National Archives and Records Administration (NARA) and the Department of Defense (DOD), where ownership of the Official Military Personnel Files of former service members is transferred to NARA from the DOD 62 years after separation, mailing the files permanent records of the United States government. The military personnel records does not include details about participation in specific military battles, but can include many other details of interest to a family historian.

Publicly available vital records (birth, marriage and death) records can vary greatly by state.  In some locations, such as New York, a city can have different privacy restrictions than the state.  While the New York State regulations restrict birth certificates for at least 75 years, death certificates for 50 years and marriage records for 50 years, with exceptions only for direct-line descendants of deceased individuals, the records of of New York City are more tightly restricted with records being publicly available for births occurring prior to 1910, deaths prior to 1949 and marriages prior to 1950.  New York City vital record availability is further complicated by the differing record-retention histories of the five boroughs and their counties. 

Yes, it’s a bureaucratic wilderness out there. But preparing yourself with knowledge before you start requesting documents can save you time, money, and stress. May the FOIA be with you!

Quick Tip: The Italian Exception

When applying for Italian Dual Citizenship, the United States Federal Census records are a requirement to substantiate that your ancestor never became a U.S. naturalized citizen.  A blood relative of the immediate family (parent, sibling or child), a surviving spouse or a named heir  may request protected copies of the post-1940 censuses by submitting form BC-600 to the United States Department of Commerce.

Sources... Duh!

Kirsten Rabe Smolensky, HOFSTRA Law (https://law.hofstra.edu : accessed 14 October 2020), “Rights of the Dead.”

J. David Hackers, NCBI (https://www.ncbi.nlm.nih.gov : accessed 14 October 2020), “Decennial Life Tables for the White Population of the United States, 1790–1900.” 

Joel Weintraub, “Why the 72 Year Rule For U.S. Census Privacy,” Roots-Key:  Journal of the Jewish Genealogical Society of Los Angeles, vol. 28, issue 2 (Summer 2008): p. 17; image copy, One-Step Webpages by Stephen P. Morse (https://www.stevenmorese.org : accessed 14 October 2020).

Stephen P. Morse and Joel D. Wintraub, One-Step Webpages by Stephen P. Morse (https://www.stevenmorese.org : accessed 14 October 2020), “Getting Ready for the 1950 Census:  Searching With and Without a Name Index.”

Russell Heimlich, Pew Research Center (https://www.pewresearch.org : accessed  14 October 2020), “The ‘72-year-rule’ Governs Release of Census Records.”

Reporters Committee For Freedom of the Press (https://www.rcfp.org : accessed  14 October 2020), “1. Birth Certificates.”

Centers for Disease Control and Prevention (https://cdc.gov : accessed  14 October 2020), image copy “Table ss. Life expectancy at birth, at 65 years of age, and at 75 years of age, by race and sex: United States, selected years 1900-2007.”

Kenneth D. Kochanek, Robert N. Anderson, Elizabeth Arias, Centers for Disease Control and Prevention (https://cdc.gov : accessed 14 October 2020), “Changes in Life Expectancy at Birth, 2010-2018.”

“Availability of Census Records About Individuals,” U.S. Census Bureau, Factfinder for the Nation, CF-2, June 2008, e-publication (https://census.gov : accessed 14 October 2020), p. 1

FOIA.gov (https;//foia.gov : accessed 14 October 2020), “What is the FOIA?.” 

National Archives (https://archives.gov : accessed 14 October 2020), “”Veterans’ Service Records.”

Francis William Edmonds, “Taking the Census,” 1854; The Met 150, no. 2006.457; Metropolitan Museum of Art, New York, Oil on canvas, 28” high x 38 wide; The Metropolitan Museum of Art (https://metmuseum.org : accessed  14 October 2020).

Thanks for reading, we’ll see you next week! 🎉