HARRISBURG — A long-simmering dispute over who owns digital copies of millions of Pennsylvania’s treasured historical records landed before a state appellate court this week.
The ruling could determine whether those belong to the public or are under the control of a privately owned genealogy powerhouse.
On Wednesday, Pennsylvania’s Commonwealth Court heard legal arguments in the case, in which a New York City-based professional genealogist faces off with a little-known but important state agency, as well as online genealogy giant Ancestry. The latter is a private company used by millions of people to search for family and other records.
The genealogist is Alec Ferretti, a director at Reclaim the Records, a nonprofit that advocates for governments to make genealogical documents more accessible. In 2022, he submitted a public records request to the Pennsylvania Historical and Museum Commission (PHMC), the state’s “official history agency” that is responsible for collecting, conserving, and safeguarding the commonwealth’s historical records and objects.
At the time, Ferretti sought all records the state agency had provided to Ancestry as part of a 2008 agreement that, up until Ferretti’s request, had attracted sparse attention. That agreement allowed Ancestry to digitize a long list of Pennsylvania historical documents belonging to the commission and make them available on its website.
According to the agreement, those documents include birth and death certificates, veterans' burial cards, records about enslaved people, and naturalization forms, as well as Civil War border claims and muster rolls. Those records would then be free to Pennsylvania residents who create user profiles with Ancestry, which requires a paid subscription to access the breadth of its records. An Ancestry lawyer on Wednesday said it has about 18 million digitized images in all.
Since Ferretti is a New York state resident, he requested the information directly from PHMC. He also asked for the metadata on the digitized records, as well as any index lists that Ancestry created when performing that work.
PHMC denied the request, saying it didn’t have any responsive records in its possession. Ferretti appealed, arguing that the state agency was required to obtain them from Ancestry under a section of Pennsylvania’s Right-to-Know Law that allows public access to documents held by a private contractor hired to perform a governmental function on behalf of a government agency.
Lawyers for Ancestry soon intervened in the fight, contending the company was not carrying out a government function for PHMC. They also argued that although Ancestry had agreed to license back the digitized records to the state, its work product is proprietary.
Translation: It owns the digital records.
The case has spent nearly four years in a complicated spiral of appeals before the state’s Office of Open Records, which sided with Ferretti. The matter could wind up in front of the Pennsylvania Supreme Court, depending on Commonwealth Court’s decision.
During oral arguments on Wednesday, Commonwealth Court judges asked both sides pointed questions about whether the digital images constitute a public record accessible under the state’s Right-to-Know Law, as certain archival materials (while public) don’t fall under the law’s jurisdiction. They also asked whether maintaining digitized copies of historical records amounted to a governmental function.
The judges seemed to agree on one thing: The case raised interesting dilemmas.
“We just love Right-to-Know Law, so this is great,” President Judge Renée Cohn Jubelirer told lawyers when legal arguments came to a close.