Fighting Over the Past: Ferretti v. Pennsylvania Historical and Museum Commission

A Pennsylvania agency and court are currently deciding who controls access to millions of individual vital records – Ancestry.com, or the Commonwealth itself.

The Pennsylvania Historical and Museum Commission (PHMC) contracted The Generations Network/Ancestry.com (Ancestry) to digitize Pennsylvania’s physical historical records in 2008. These records include birth certificates, marriage licenses, death certificates, naturalization documents, veteran burial cards, prison records – even older documents, including Civil War border claims, muster rolls, and slave records. While these documents are accessible to in-state and out-of-state residents alike if they visit Harrisburg to review the physical documents in-person, PHMC was seeking to improve online research methods for these records.

When all was said and done, the digitized documents encompassed about 45 terabytes of data – roughly 46,000 gigabytes of storage. This would cost Pennsylvania roughly $300,000 to maintain annually, so PHMC chose for Ancestry to house the scanned documents on behalf of the state. According to PHMC, those records are free to Pennsylvania residents with Ancestry user accounts. [1]

In 2022, Alec Ferretti, a genealogist and director at Reclaim the Records, submitted a public records request to PHMC for all records that the agency had provided to Ancestry. Reclaim the Records is a not-for-profit activist organization that seeks open access to genealogical records. It systemically files similar public records requests with state agencies, then digitizes and publishes these vital records on their website. [2]

Ferretti’s request included every record that was provided to Ancestry, as well as the metadata and indexes for the digitized documents.

PHMC denied the request, stating that no responsive records existed within its “possession, custody or control” to satisfy the vague request. [3]

Ferretti appealed to the Pennsylvania Office of Open Records, arguing that he was entitled to free access to these digital records. Because he resides outside of Pennsylvania, accessing these records required a paid subscription with Ancestry.

PHMC maintained that transferring digital copies of those records, metadata, and indexes would violate its contract with Ancestry. The agency also argued that the vague request for the “wholesale transfer” of state property was an abuse of public record requests. Ferretti countered that, while Ancestry housed the digital documents, the state is the “legal custodian” of the records, and therefore had to abide by the request.

In 2023, the Office granted Ferretti’s appeal and ordered PHMC to provide the records to Ferretti within 30 days. The conflict has only escalated from there – PHMC appealed to the Commonwealth Court, and Ancestry became involved in the litigation. The company argued during the appeal that under the original contract, it licenses copies of the digitized records back to the state – but the actual digital copies are “work product,” and any work by Ancestry to digitize and index those records should be considered “proprietary.” [4]

The Commonwealth Court denied the appeal and remanded the case back to the Office of Open Records, directing the Office to rehear the matter with Ancestry’s involvement and arguments. While PHMC, Ancestry, and Ferretti are awaiting the Office’s ruling any day now, it is very likely that this issue will make its way back to the Commonwealth Court.

The outcome of this case will impact both Pennsylvania residents and out-of-state residents seeking access to state vital records. However, while we wait for the Office of Open Records to issue its next opinion, the question remains – what does it mean to have open access to state records? And who should control that access?

[1] Accessible at https://www.phmc.pa.gov/Archives/Research-Online/Pages/Ancestry-PA.aspx.

[2] Read more about Reclaim the Records at https://www.reclaimtherecords.org/.

[3] Accessible at https://www.openrecords.pa.gov/Appeals/DocketGetFile.cfm?id=112029.

[4] Accessible at https://www.spotlightpa.org/news/2023/12/ancestry-genealogy-pennsylvania-historical-records-court-fight/#:~:text=He%20also%20argued%20that%20though,the%20state%20archives%20in%20Harrisburg.