Inside the Pa. court case pitting a genealogist against Ancestry.com

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What began in 2022 as a one-paragraph public records request has morphed into a full-blown court fight over who owns digital copies of Pennsylvania’s historical records.

Are they the property of the commonwealth? Or are the documents — which include birth and death certificates, veterans’ burial cards and slave records — fully controlled by a private company?

That question has pitted a New York City-based professional genealogist against the Pennsylvania agency in charge of a vast array of historical documents and artifacts, as well as Ancestry.com, an online genealogy company used by millions of people to search for family and other records.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 pushes governments to make genealogical information more broadly available.

The state agency is the Pennsylvania Historical and Museum Commission (PHMC), which in 2008 contracted with Ancestry to digitize a sweeping list of historical documents and make them available on the company’s website. Those records also include naturalization documents, prison records and Civil War border claims and muster rolls, according to the contract.

Those digitized records, according to PHMC’s website, are free to Pennsylvania residents who create a user profile with Ancestry.

Ferretti, however, isn’t a Pennsylvania resident.

So in September of last year, Ferretti asked PHMC for all records the state agency turned over to Ancestry. He also asked for the metadata on the digitized documents, as well as any indexes Ancestry created for them.

PHMC denied the request, saying it had no responsive records in its possession. Ferretti appealed to Pennsylvania’s Office of Open Records, an independent state agency that’s the first stop in deciding most disputes over access to government information.

According to legal briefs in the case, PHMC said documents Ancestry eventually digitized encompassed a huge amount of data — approximately 45 terabytes — that would have cost the agency roughly $300,000 annually to maintain. So it chose to have Ancestry house the scanned records for the state.

Copying those records, indexes and metadata, as Ferretti requested, would be considered a breach of its contract with Ancestry, PHMC argued.

Ferretti countered that Ancestry could at the very least transfer the data using USB hard drives. He noted that because he doesn’t live in Pennsylvania, he would have to pay a subscription fee to the company to access the records. He also argued that though Ancestry houses the documents and their data, the state is their “legal custodian.”

Ownership of the commonwealth’s physical records is not contested. Those are available to Pennsylvania residents and nonresidents alike at the state archives in Harrisburg.

The Office of Open Records sided with Ferretti early this year, but the battle didn’t end. PHMC appealed to Commonwealth Court. Soon after, Ancestry stepped in, arguing that its work digitizing and indexing the records is proprietary. It also argued that though the company agreed under the contract to license copies of the digitized records back to the state, it owns the work product, and said it didn’t get a chance to weigh in on the initial Office of Open Records case.

For now, both Ferretti’s request and the larger question of who owns the records remain unresolved. Commonwealth Court kicked the matter back down to the Office of Open Records and instructed the agency to consider Ancestry’s arguments.

The office told lawyers in the case it expects to issue a new ruling in the case mid-next month — but that it could possibly be longer. Terry Mutchler, Ferretti’s lawyer, said regardless of the outcome, the matter will again likely end up in appellate court.

Added Mutchler: “At the end of the day, here is the question: Is it a corporation that owns the historical records of Pennsylvania — or is it going to be the people of Pennsylvania?”

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