In this Article 78 proceeding, petitioner MJ seeks an order directing respondent New York State Department of Health (“DOH”) to release to him the birth certificate of his father, CJ. According to the petition, he needs the certificate in order to obtain Irish citizenship through his paternal ancestry. The petition indicates that MJ is estranged from his father, and numerous efforts to get his permission prior to bringing this petition were not successful. Appended to the petition are various communications in which petitioner (directly or through counsel or other third parties) asks his father to send him a copy of the birth certificate. In response to the petition, respondent State Department of Health indicated by letter that it does not object to the relief sought; its letter makes no reference, though, to the absence of the father’s consent or its implications. In light of these submissions, I wrote to CJ on October 4, 2022 to seek his input, indicating in my letter that any response would be shared with petitioner. CJ responded by letter to the Court. Without going into all the specific details, the letter stated that: (1) he and other family members have long been estranged from petitioner; (2) he attributes this estrangement to conduct on petitioner’s part; and (3) while petitioner has made recent efforts to re-connect with family members, he is “skeptical” of his son’s “sincerity.” In general, CJ expressed the desire to have his “private information…remain private,” and thus opposes the release of a copy of his birth certificate to his son. In particular, he states that he has been the victim of identity theft three times in the past four years, and therefore seeks to “guard” his information. With the Court’s leave, petitioner and his counsel responded to the letter. Through his own affidavit, petitioner describes his efforts to re-connect with his family in an attempt to make amends for his past transgressions, although he acknowledges that he has not reached out directly to his father for this purpose, due to the “mental strain” it would cause (MJ Aff 8). For her part, petitioner’s counsel describes her client’s need to obtain the birth certificate in connection with the application for Irish Citizenship, and attests to his sincerity in seeking a birth certificate for this purpose alone. Discussion Public Health Law §4174 provides, as relevant here, that the Commissioner of Health or his representative shall “issue certified copies or certified transcripts of birth certificates only (1) upon order of a court of competent jurisdiction, or (2) upon specific request therefor by the person on the birth certificate, if eighteen years of age or more, or by a parent or other lawful representative of the person,…or (3) upon specific request therefor by a department of a state or the federal government of the United States” (Public Health Law §4174[1][b]). The statute does not set forth any standards governing the issuance of such court order. Orders directing the release of the birth certificates of parents or grandparents as a means to secure foreign citizenship have been commonplace in recent years, and are typically sought after the individual on the certificate is deceased. Unsurprisingly, such applications have not generally sought the birth certificates of living persons, as such may be obtained from the person denoted in the certificate, so long as that individual is disposed to cooperate. While there is no authority directly addressing a situation where the individual for whom the certificate was issued objects to its provision, it may be gleaned from various authorities — as well as the purpose underlying restrictions on disclosure — that the statute was not intended to allow third parties to gain living individuals’ identity documents in such circumstances. The prohibition against DOH’s production of a birth certificate to any non-governmental third party absent a court order itself bespeaks the Legislature’s recognition that there is a significant privacy interest in the document.1 This has been recognized, in particular, in caselaw addressing the Freedom of Information Law (“FOIL”). For example, one trial court affirmed the withholding of birth certificates and other identification materials in response to a FOIL request, finding that FOIL exemptions for disclosure of “information of a personal nature,” (Public Officers Law ["POL"] §87[2][b][5], records whose disclosure “would constitute an unwarranted invasion of personal privacy” (POL §87[2][b]), or information which “could endanger the life or safety of any person” (POL §87[2][f]) were applicable to “the information at issue, namely, personally identifying documentation such as passports, birth certificates, driver’s license, etc.” (see Castorina v. De Blasio, 56 Misc 3d 413, 427-428 [Sup Ct, NY County 2017]). The Court reasoned that “[t]his type of information if released, allows the recipient information which could allow impersonation of the applicant, and access to the applicant’s economic or personal information” (id. at 428). In another trial court decision, a parent in a child custody proceeding was required to procure health insurance “so as not to have to reveal her personal documents such as birth certificates and any other documents, given the privacy issues raised, and the HIPAA concerns that this Court has”2 (see R.I. v. T.I., 51 Misc 3d 1215[A], *11 [Sup Ct, NY County 2016]). The governing regulation also weighs against petitioner’s application, if only peripherally. Although the regulation simply reiterates the language of the statute in regard to production of birth certificates (see 10 NYCRR 35.2[a]), it indicates in regard to a “certification of birth” — a document that only states that “a certificate of birth is on file” and which contains “only the name, sex, date of birth and place of birth of the person to whom it relates and none of the other data on a certificate of birth” (Public Health Law §4100-a[3]) — that such document “shall be issued when required for a proper purpose” (10 NYCRR 35.2[b]). Thus, in the case of this “short form” document, the regulation seems to indicate that a proper purpose alone is sufficient for a requester to obtain it, while it makes no such pronouncement in regard to the birth certificate itself. Had the drafters of the statute and governing regulations wished to allow for production of a birth certificate whenever an applicant has good reason to obtain it, and regardless of the objections of the individual for whom it was issued, they could have stated that this was the case. Instead, DOH set a low threshold only for a certification of birth, not in regard to birth certificates. The only case I have found that specifically addresses the issue of whether a birth certificate of a living person may be produced without that person’s permission concerned a request made to the New York City Department of Health, which has its own, more specific regulations that make clear that a living individual’s birth certificate cannot be provided to a third party without that individual’s consent. More broadly, though, the Court embraced the New York City Department of Health’s rationale for opposing the application, that a petitioner “cannot usurp the [certificate holders'] authority over their own vital records and private information” (Pellegrino v. Chokashi, 2021 WL 1298071, *4 [Sup Ct, NY County 2021]). I find this principle applicable here: the petitioner cannot usurp the authority of his father over the latter’s own vital records and private information. I make this determination notwithstanding that petitioner has articulated understandable and reasonable grounds for seeking the birth certificate. I presume — and have no reason not to — that petitioner is sincere in his desire to use the information solely in connection with his application for Irish citizenship. At the end of the day, however, the law makes clear that the security and privacy concerns an individual has in his or her own birth certificate carry significant weight, and absent some extraordinary circumstance I find no indication in section 4174 that its purpose was to allow a Court to direct the release of such personal information over the explicit objection of the party to whom that information belongs. As a result, I must deny the petition. I do so without prejudice to the petitioner’s re-submission to the extent petitioner is able to obtain the consent of his father. Accordingly, it is hereby ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed. This constitutes the judgment of the Court. The original judgment is being electronically filed with the Clerk of the Court. A copy of the judgment shall be e-mailed to petitioner’s counsel, and mailed to petitioner’s father. The signing of this Decision & Order, and electronic filing with the Clerk’s Office, shall not constitute Notice of Entry under CPLR 5513, and the parties are not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry. SO ORDERED. Papers Considered: 1. Notice of Petition and Verified Petition sworn to on July 15, 2022, with Exhibits Annexed thereto. 2. Affidavit of MJ in Support of Verified Petition, sworn to on July 20, 2022. 3. Letter of Assistant Attorney General Gregory Rodriguez, dated September 9, 2022. 3. Undated Letter of CJ, e-filed December 6, 2022. 4. Affidavit of MJ in Response to CJ’s Correspondence to Court dated December 29, 2022. 4. Attorney’s Affirmation in Response to CJ’s Correspondence to Court, dated January 9, 2022, with appended Exhibits. Dated: March 29, 2023
