HARRISBURG – A long-running dispute over who owns digital copies of millions of Pennsylvania’s treasured historical records came before a state appeals court last week.
The ruling could determine whether they are owned by the public or under the control of a privately owned genealogical powerhouse.
On Wednesday, Pennsylvania Commonwealth Court heard legal arguments in the case, in which a New York City professional genealogist takes on 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, director of Reclaim the Records, a nonprofit that advocates for governments to make genealogical documents more accessible. In 2022, it submitted a public records request to the Pennsylvania Historical and Museum Commission, the state’s “official historical agency” responsible for collecting, preserving and safeguarding the Commonwealth’s historical records and objects.
At the time, Ferretti searched for all records the state agency had provided to Ancestry as part of a 2008 settlement that, until Ferretti’s request, had attracted scant attention. That agreement allowed Ancestry to digitize a long list of historical Pennsylvania documents belonging to the commission and make them available on its website.
Under the agreement, those documents include birth and death certificates, veteran burial cards, enslaved person records and naturalization forms, as well as frontier claims and muster lists from the Civil War. Those records would then be free to Pennsylvania residents who create user profiles with Ancestry, which requires a paid subscription to access the range of its records. An attorney for Ancestry said Wednesday that it has about 18 million digitized images in total.
Since Ferretti is a New York State resident, he requested the information directly from PHMC. It also requested the metadata of the digitized records, as well as the index lists Ancestry created in doing that work.
PHMC denied the request, saying it did not have any 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 government function on behalf of a government agency.
Ancestry’s lawyers soon intervened in the fight, arguing that the company was not performing a government function for PHMC. They also argued that although Ancestry had agreed to relicense the digitized records to the state, the product of their work is proprietary.
Translation: You own the digital records.
The case has spent nearly four years in a complicated spiral of appeals to the state Office of Open Records, which sided with Ferretti. The matter could end up before the Pennsylvania Supreme Court, depending on the Commonwealth Court’s decision.
During oral arguments Wednesday, Commonwealth Court judges asked both sides pointed questions about whether digital images constitute an accessible public record under the state’s Right to Information Act, since certain archival materials (although public) do not fall under the jurisdiction of the law. They also asked whether maintaining digitized copies of historical records amounted to a government function.
The justices seemed to agree on one thing: The case raised interesting dilemmas.
“We love the right-to-know law, so this is fantastic,” Chief Justice Renée Cohn Jubelirer told lawyers as legal arguments came to a close.
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