Documenting death: public access to government death records and attendant privacy concerns.

Abstract

This Article examines the contentious relationship between public rights to access government-held death records and privacy rights concerning the deceased, whose personal information is contained in those same records. This right of access dispute implicates core democratic principles and public policy interests. Open access to death records, such as death certificates and autopsy reports, serves the public interest by shedding light on government agency performance, uncovering potential government wrongdoing, providing data on public health trends, and aiding those investigating family history, for instance. Families of the deceased have challenged the release of these records on privacy grounds, as the records may contain sensitive and embarrassing information about the deceased. Legislatures and the courts addressing this dispute have collectively struggled to reconcile the competing open access and privacy principles. The Article demonstrates how a substantial portion of the resulting law in this area is haphazardly formed, significantly overbroad, and loaded with unintended consequences. The Article offers legal reforms to bring consistency and coherence to this currently disordered area of jurisprudence.