When someone asks a Maine town clerk or the state Bureau of Vital Records for a death certificate, can they see the cause of death, or is that confidential?

Plain-English summary

DHS Commissioner H. Rollin Ives asked AG James E. Tierney to clarify the Department's November 21, 1977 opinion on public access to vital records. The 1977 opinion had said that all vital records except those of illegitimate births were open to public inspection. Ives wanted to know whether that broad statement actually extended to cause-of-death information on death certificates held by state and local custodians. Tierney said no. Cause-of-death information is confidential under 22 M.R.S.A. § 2706(4), and the 1977 opinion's broad framing should not be read to override that specific statutory rule.

The analytical chain ran through three statutes. First, the Freedom of Access Law, 1 M.R.S.A. §§ 401-410. § 408 provides that all documents in the possession of governmental entities are open to public inspection. § 402(3)(A) carves out an exception for "records that have been designated confidential by statute." The default is openness, but the Legislature can override openness by statute-specific designations.

Second, 22 M.R.S.A. § 2706, the vital records statute. § 2706(1) makes illegitimate-birth records confidential. § 2706(4) provides:

It shall be unlawful for any employee of the State or of any municipality in the State to disclose data contained in such records [of birth, marriage and death], except as authorized in this section and except that a clerk of a municipality may cause to be printed in the annual town report the deaths reported within the year covered by the said report, by date of death, name, age and location by city or town where death occurred. All other details of death shall not be available to the general public.

The last sentence, added in 1973 (P.L. 1973, ch. 121), is the operative limit. It does two things: it permits municipalities to publish four data fields (date, name, age, and city/town of death) in their annual reports, and it expressly forbids public access to "all other details of death." Cause of death falls within "all other details."

Third, the Legislature confirmed this reading in 1986. P.L. 1985, ch. 611, § 2, amended 22 M.R.S.A. § 2842(3) (the Medical Examiner Act) to allow the Chief Medical Examiner to release information about the "cause, manner and circumstances of death" to the public "notwithstanding section 2706, subsection 4." The Statement of Fact for L.D. 1218 explained that the amendment's purpose was to clarify which portions of the death certificate the medical examiner was responsible for and to allow the Office of the Chief Medical Examiner to release that information. If cause-of-death information were already public, the "notwithstanding § 2706(4)" carve-out would have been superfluous. A 1987 amendment further refined the Medical Examiner Act by authorizing the Attorney General to direct the Medical Examiner to withhold certain information (P.L. 1987, ch. 329, § 1), but left the underlying § 2706(4) baseline intact.

Tierney closed by reaffirming the general rule from the 1977 opinion (vital records are public unless made confidential by independent statute) and identifying the two specific confidentiality designations: illegitimate-birth records under § 2706(1), and cause-of-death information (and all other details of death beyond name/age/date/town) under § 2706(4). He did not offer views on any other specific vital records category. The principles in Appeal of Davis, 369 A.2d 628 (Me. 1977), confirmed that the plain meaning of legislative enactments must be given effect, supporting the strict reading of the 1973 amendment's "all other details of death" language.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What information on a death certificate was public under 1989 Maine law?

Only four fields: date of death, name of the deceased, age, and city or town where the death occurred. Those were the items a municipal clerk could publish in the annual town report. Everything else, including cause of death, was confidential under the second sentence of § 2706(4).

Why did the Medical Examiner have different authority?

Because the Legislature gave the Medical Examiner an express statutory exception. The 1986 amendment to § 2842(3) allowed the Chief Medical Examiner to release information about cause, manner, and circumstances of death to the public, expressly overriding § 2706(4). That carve-out only made sense if cause-of-death information was otherwise confidential.

What about births that were not 'illegitimate'?

The 1989 opinion did not address other categories of birth records. It noted only that illegitimate-birth records were specifically made confidential by § 2706(1). Other birth records were presumptively public under the Freedom of Access Law and the general public-inspection principle.

Did the 1977 opinion get it wrong?

The 1977 opinion did not focus on cause-of-death information at all. Its language was broad enough to imply that everything except illegitimate-birth records was public, but Tierney concluded the broad framing was not intended to override the specific § 2706(4) rule. The 1989 opinion clarifies rather than reverses the earlier opinion.

Does this apply to old death records held by genealogists or historical societies?

The statute reaches "data contained in such records" in the hands of state or municipal employees. Once a record has passed into private hands (after the statutory retention period ends, or via lawful release), the analysis is different. The 1989 opinion does not speak to records lawfully in private possession.

Why did the Legislature limit cause-of-death disclosure in 1973?

The opinion does not give an extensive legislative history. The Department applies the plain-meaning rule from Appeal of Davis (Me. 1977) and gives the 1973 text its plain effect. Whatever the underlying privacy or stigma concerns, the statute as enacted bars public access to cause-of-death information.

Background and statutory framework

Maine's public-records framework operates through a default-and-override structure. The Freedom of Access Law (1 M.R.S.A. §§ 401-410) sets a default rule of openness for records held by government entities. The statute also provides, in § 402(3)(A), an exception for records designated confidential by other statutes. The vital records statute, 22 M.R.S.A. § 2706, is one such overriding statute. § 2706(1) protects illegitimate-birth records; § 2706(4), as amended in 1973, protects death-record details other than the four publicly available fields. The Medical Examiner Act, 22 M.R.S.A. § 2842, then provides a narrow carve-out for the Chief Medical Examiner to disclose cause-of-death information notwithstanding § 2706(4). The 1989 opinion clarifies the relationships among these statutes and supersedes the broader implications of the 1977 opinion to the extent they would have allowed cause-of-death disclosure by routine custodians.

Citations

• 1 M.R.S.A. §§ 401-410 (Maine Freedom of Access Law)
• 1 M.R.S.A. § 408 (1979)
• 1 M.R.S.A. § 402(3)(A) (1979)
• 22 M.R.S.A. § 2706
• 22 M.R.S.A. § 2706(1)
• 22 M.R.S.A. § 2706(4)
• 22 M.R.S.A. § 2842(3)
• P.L. 1957, ch. 298, § 7
• P.L. 1973, ch. 121
• P.L. 1985, ch. 611, § 2
• P.L. 1987, ch. 329, § 1
• L.D. 1218, Statement of Fact, 2nd paragraph (112th Legis. 1985)
• Appeal of Davis, 369 A.2d 628 (Me. 1977)
• Op. Me. Att'y Gen. (Nov. 21, 1977) (prior opinion clarified)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890119.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

89-1

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

January 19, 1989

Rollin Ives, Commissioner
Department of Human Services
State House Station #11
Augusta, Maine 04333

Dear Commissioner Ives:

This responds to your request for a clarification of the Opinion of this Department of November 21, 1977 concerning public access to vital records. In particular, you have asked whether the conclusion of that Opinion, that all vital records except those of illegitimate births must be open to public inspection, applies to information relating to the cause of death contained in death certificates which are in the possession of state or local custodians. For the reasons which follow, it is the Opinion of this Department that, like information relating to illegitimate births, cause of death information is not public.

The broad question addressed in this Department's 1977 Opinion, a copy of which is attached, was the relationship between the Maine Freedom of Access Law, 1 M.R.S.A. §§ 401-410 (1979 & Supp. 1988), and the specific provisions of 22 M.R.S.A. § 2706 (1980) regarding the disclosure of vital records. As the 1977 Opinion correctly points out, all documents in the possession of governmental entities in Maine are, under the express terms of the Freedom of Access Law, open to public inspection. 1 M.R.S.A. § 408 (1979). The Law, however, does make certain exceptions to this broad rule, the most important of which for present purposes is an exception for "records that have been designated confidential by statute." 1 M.R.S.A. § 402(3)(A) (1979). 22 M.R.S.A. § 2706 is such a statute, which, as the 1977 Opinion recognized, among other things, renders information relating to illegitimate births confidential. 22 M.R.S.A. § 2706(1).

The problem which your inquiry poses derives from the conclusion of the 1977 Opinion that, except for records of illegitimate births, all other vital records are open to public inspection. While it is not clear to what specific kind of record that Opinion was directed, it is clear that it did not focus upon the question of public accessibility to cause of death information. That type of information, like information relating to illegitimate births, is the subject of an express provision of Section 2706:

It shall be unlawful for any employee of the State or of any municipality in the State to disclose data contained in such records [of birth, marriage and death], except as authorized in this section and except that a clerk of a municipality may cause to be printed in the annual town report the deaths reported within the year covered by the said report, by date of death, name, age and location by city or town where death occurred. All other details of death shall not be available to the general public.

22 M.R.S.A. § 2706(4) (emphasis added).

The last sentence of Section 2706(4) was added in 1973. P.L. 1973, ch. 121.[1] While the legislative history of the amendment is silent as to its relation to the Freedom of Access Law, first enacted in 1959, P.L. 1959, ch. 219, it is quite clear that the Legislature intended that the details of death, other than the name and age of the deceased and the date and location of death, be unavailable to the public. Appeal of Davis, 369 A.2d 628 (Me. 1977) (plain meaning of legislative enactments shall be given effect). Thus, cause of death information contained in death records must be regarded as confidential and not open to public inspection under the Freedom of Access Law.

This conclusion is confirmed by more recent action of the Maine Legislature. In 1986, the Legislature amended the Medical Examiner Act to permit information concerning, among other things, the "... cause, manner and circumstances of death ..." to be released to the public, "[n]otwithstanding section 2706, subsection 4, ..." P.L. 1985, ch. 611, § 2, amending 22 M.R.S.A. § 2842(3). See L.D. 1218, Statement of Fact, 2nd paragraph (112th Legis. 1985) (the purpose of the amendment is to detail "those portions of the death certificate that the medical examiner is responsible for among the entries required on the death certificate," and to allow "the Office of the Chief Medical Examiner to release that information to the public.") This provision, expressly exempting itself from the operation of Section 2706(4), would have been superfluous if all of the information on the death certificate, including the cause of death, were already available to the public.[2] The Legislature thus appears to have fully understood, as recently as 1986, that it had designated cause of death information to be confidential.

I hope the foregoing answers your question. If your Department should have any other questions concerning the public accessibility of specific classes of vital records, please do not hesitate to reinquire. As indicated above, the general rule set forth in this Department's 1977 Opinion is correct: all such records are public unless specifically made confidential by independent statute. As indicated above, the Legislature has clearly rendered information relating to illegitimate births and causes of death not available to the public. This Opinion offers no view on any other specific class of vital records.

Sincerely,
JAMES E. TIERNEY
Attorney General

JET/ec

[1] Section 2706 itself was enacted in 1957. P.L. 1957, ch. 298, § 7.
[2] A 1987 amendment to Section 2842(3), authorizing the Attorney General to direct the Medical Examiner to withhold, among other things, cause of death information, left the relevant language intact. P.L. 1987, ch. 329, § 1.