Obermayer’s Transparency Law Team Achieves Landmark Victory in Historic Records Case

Obermayer’s Transparency Law and Public Data Practice landed a record win against the world’s largest ancestry and genealogical company, Ancestry.com, and the Pennsylvania Historic Museum Commission. On behalf of a group of historians called “Reclaim the Records”, the case has tremendous implications for the state’s historical records,  including slave records, military records, Civil War records, and records of William Penn and Ben Franklin to name a few. 

The state of Pennsylvania’s Historic Museum Commission entered a contract more than a decade ago with Ancestry.com for the for-profit company to scan the Keystone state’s historical and genealogical records and to return the original copies  to the state. When Reclaim the Records attempted to get a copy of certain public genealogical records under the Right to Know Law, PHMC denied the request saying it no longer possessed the records and the requestors would have to seek the records from Ancestry.com – which meant that the historians would have to pay for public records – and agree not to use them other than for personal perusing.   In short, Ancestry.com argued that it “owned the records.” The historians hired Terry Mutchler to help them.

Mutchler, Chair of Obermayer’s Transparency & Public Data Practice, had argued and won this case previously last year, but the Commonwealth Court remanded the case  to the Office of Open Records so Ancestry.com lawyers could intervene and argue it owned the records via a licensing agreement with state officials. 

Mutchler argued, again, that the records are public and accessible through the state’s Right to Know Law.  She asserted that despite PHMC stating (astonishingly) that it no longer has the records in its “possession custody or control” they still had a legal duty to go get the records. Mutchler also argued how unbelievable it is that the state apparently no longer has possession of certain of its treasured historical records.

Mutchler won! The Office of Open Records held for a second time that the records were public and PHMC had a legal obligation to obtain  them. To hold otherwise, OOR said, would lead to absurd results, including a private company owning these records. 

Ancestry.com is likely to appeal to the Commonwealth Court a second time.  Terry Mutchler and Erika Silverbreit are prepared to respond.

Interestingly, one of the Board members of our client, Reclaim the Records, is E. Randol Schoenberg who is widely known as one of the central figures of the 2015 film Woman in Gold, who specializes in recapturing artwork looted by the Nazi’s.