Opinion
No. 71-351
Decided December 19, 1972. Rehearing denied January 9, 1973. Certiorari granted March 12, 1973.
Action by newspaper publisher seeking to require local registrar of vital statistics to supply certain requested information from birth and death certificates. From dismissal of complaint, publisher appealed.
Affirmed
1. RECORDS — Vital Statistics — Access Limited — Applicant — Direct and Tangible Interest — Significant Legal Relationship — Not — Publisher — Commercial Purposes. Where statute limits access of a vital statistics record to "applicant having a direct and tangible interest," such an applicant is one who has a significant legal relationship to the person who is the subject of the record, and neither newspaper publisher nor any other person seeking copies of records for commercial purposes has that requisite relationship.
2. Statute — Search — Purpose — Determine Existence — Not — Provide Copy — Prescribed Interest — Necessary. Statutory provision for search of vital statistics records by their custodian do not authorize the custodian to provide a copy of the record or to divulge its contents; rather the purpose of such a search is to determine whether a particular record exists, and the information in that record may be released only to applicants with the statutorily prescribed interest.
3. NEWSPAPERS — Vital Statistics Records — Freedom of Press — Right to Publish — Not At Issue — Right to Receive — Registrar — Only Issue. In action by newspaper publisher against registrar of vital statistics seeking access to certain birth and death information records, freedom of the press and publisher's right to publish the information is not at issue and is not curtailed; the only issue in the action is the publisher's right to receive the information from the department of public health and that department's duty to preserve the confidentiality of its records.
4. AMICUS CURIAE — Issue Raised — Not By Parties — Not Considered — On Appeal. Issue raised by amicus curiae in its brief was not raised by parties to the appeal, and so will not be considered by the court on appeal.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
Gorsuch, Kirgis, Campbell, Walker and Grover, Leonard M. Campbell, Matthew A. Henderson, Richard B. Harvey, for plaintiff-appellant.
Lyle E. Miller, for defendant-appellee.
Duke W. Dunbar, Attorney General, William Tucker, Assistant, for intervenor-appellee.
William E. Russell, for amicus curiae Colorado Press Association.
Eugene Cervi Co. (Cervi) brought this action seeking a mandatory injunction against Doctor William F. Russell, Jr. (Russell), Medical Director for Jefferson County and local registrar of vital statistics, to compel Russell to furnish Cervi certain requested information from birth and death certificates, which Russell had refused to provide. The Colorado Department of Health, the official custodian of vital statistics records, intervened on behalf of Russell. After a trial to the court on stipulated facts, the court entered judgment dismissing the complaint. We affirm.
The stipulated facts show that Cervi publishes a newspaper and "is presently engaged directly in providing a service to its subscribers and to the public whereby [Cervi] accumulates and disseminates, for a fee, as a news service, data from birth and death certificates in Denver and other counties in the Denver Metropolitan area, except Jefferson County." The information furnished includes, as to births, names and addresses, if available, of the parents, date of birth, and sex of child; and as to deaths, the name and address of the decedent and date of death. Cervi requested that Russell furnish it with the above information from all current certificates, and offered to pay the statutory fee therefor. Russell refused to furnish this information on the ground that statutory restrictions prevented him from doing so. It is further stipulated that birth lists are requested, for commercial purposes, by insurance companies, toy distributors, and by baby food, clothing and magazine salesmen. Death lists are requested, also for commercial purposes, by memorial groups and by tombstone and other salesmen.
The pertinent statutory provisions are, as follows:
"It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this article or as otherwise specifically provided by law." 1969 Perm. Supp., C.R.S. 1963, 113-2-1.
"All public records shall be open for inspection by any person at reasonable times, except as provided in this article, or as otherwise provided by law, . . . ." 1969 Perm. Supp., C.R.S. 1963, 113-2-3(1).
"Vital statistics records shall be treated as confidential, but the department of public health shall, upon request, furnish to any applicant having a direct and tangible interest in a vital statistics record a certified copy of any record registered under the provisions of this article. . . . For any search of the files and records when no certified copy is made, there shall be paid by the applicant a fee of two dollars for each hour or fractional hour of time of search. . . ." 1967 Perm. Supp., C.R.S. 1963, 66-8-17.
Cervi asserts that it has a "direct and tangible interest" in the records, and that under the public policy of the state as set forth in the public records statute, it is entitled to inspection of the records. Cervi further contends that if the statute prevents it from receiving the requested information, the statute violates Cervi's constitutional right of freedom of the press.
[1] The section of the statute which provides that "vital statistics records shall be treated as confidential" exempts these records from the right to inspect given by the public records act. Therefore Cervi is entitled to copies of these records only if it can show a "direct and tangible interest" as required by the statute. The words "direct and tangible" must be interpreted in the light of the entire section. Stevens v. Nave-McCord Mercantile Co., 150 F. 71. They establish the criteria under which the confidentiality of the records can be avoided. "Direct" has been defined as indicating "immediate." People v. Boylan, 25 F. 594. As used in the statute, an "applicant having a direct and tangible interest" is one who has a significant legal relationship to the person who is the subject of the record. Neither Cervi nor any other person seeking copies for commercial purposes has that relationship.
It is significant that the statute, after making all vital statistics records confidential, creates an exception for one who has the specified interest in "a vital statistics record," and not in an unlimited number of records. The term, "direct and tangible interest," is a term of limitation. Cervi's interest is in the limitless use of the information, which use is clearly contrary to the intent of the statute. Statutes must be construed to carry out their beneficient purposes, and not to defeat them. State v. Elkins, 84 Colo. 409, 270 P. 875.
The confidentiality of vital statistics records is similar to that afforded information contained in income tax returns. As was stated in Oklahoma Tax Commission v. Clendinning, 193 Okla. 271, 143 P.2d 143, 151 A.L.R. 1035.
"This act constitutes the state's compact and pledge to the taxpayer that his tax return shall be kept inviolate, confidential and privileged, and not disclosed to anyone, nor in any manner, except as specifically authorized by the act itself, and will be used only for the purposes specifically provided. . . . We are not at liberty to minimize the declared public policy evinced by these express provisions of the act making the information contained in said returns confidential and privileged."
[2] Vital statistics records, being confidential, are also, by the express terms of the statute, exempt from public inspection. The provisions of section 66-8-17 providing for search of the records by their custodian do not authorize the custodian to provide a copy of the record or to divulge their contents. The purpose of such a search is to determine whether a particular record exists. The information contained in such a record can only be released to those having the prescribed interest.
[3] The freedom of the press and Cervi's right to publish and disseminate birth and death information are not at issue here. The only issue is Cervi's right to receive this information from the department of public health and the duty of that department to preserve the confidential nature of its records. Cervi is at liberty to publish the information, but must obtain it from other sources.
[4] The Colorado Press Association was permitted to appear as amicus curiae. In its brief it asserts that 1967 Perm. Supp., C.R.S. 1963, 66-8-17, is void as an unlawful delegation of power. This issue was not raised by the parties to the appeal, and will not be considered by this court. Farmers' Union Ditch Co. v. Rio Grande Canal Co., 37 Colo. 512, 86 P. 1042, Denver United States National Bank v. People, 29 Colo. App. 93, 480 P.2d 849.
The judgment is affirmed.
JUDGE COYTE and JUDGE SMITH concur.