VITAL STATISTICS—ARTICLE 26—PUBLIC HEALTH LAW—PUBLIC HEALTH COUNCIL—AUTHORITY TO REGULATE.

Under the provisions of the Public Health Law, the Public Health Council has authority to adopt rules and regulations defining under what circumstances the records of the division of vital statistics in the State Department of Health may be inspected, and transcripts from such records or searches thereof shall be made, where such rules and regulations have for their aim that the purposes of the law in establishing a division of vital statistics shall be fully subserved, but not subverted, and in particular have the authority to provide that no inspection, transcript or search of any such records shall be made without facts being disclosed to indicate that the application for such inspection, transcript or search is for a legitimate purpose. Public Health Law, section 301; Public Officers Law, Section 66.
By virtue of the provisions of section 391 of the Public Health Law and section 66 of the Public Officers Law, the duty to furnish a transcript of the records of the Division of Vital Statistics in the State Department of Health, or search said records is a mandatory duty imposed upon the commissioner of health. Where the application for such a transcript or search by a person lawfully entitled thereto. The records from which a transcript may be lawfully required or a search made include all the records now under the dominion and control and supervision of the State Department of Health, as records of vital statistics, filed or recorded since the enactment of chapter 322 of the Laws of 1880, whereby the State Board of Health first was constituted and provision made in said chapter for the establishment at the capital of the state of a central bureau of vital statistics.
The fee for a certified copy of a record of any birth or death or for any search of the files or records where no certified copy is made, specified in section 391 of the Public Health Law, are properly chargeable for certified copies of any record or for searches of all of the records and files of the Division of Vital Statistics in the State Department of Health, collected and recorded since the enactment of chapter 322 of the Laws of 1888. [187]
There are no fees expressly allowed by law for a certified copy of or search of the records of marriages in the state department of health. Therefore by virtue of the provisions of section 66 of the Public Officers Law, the State Commissioner of Health is entitled to charge and receive for a certified copy of any of the marriage records, or a search of the marriage records in the State Department of Health fees at the same rate allowed by law to a county clerk for a similar service, and construing sections 3304 and 3305 of the Code of Civil Procedure with section 66 of the Public Officers Law, the State Commissioner of Health is authorized to charge for a certified copy of a marriage record at the rate of eight cents per folio with a minimum fee of twenty-five cents and for a search of the marriage records of the State Department of Health is entitled to a fee of five cents a year for each name searched against.

PUBLIC HEALTH LAW, SECTION 370—REGISTRARS’ DUTY TO CONFORM TO REGULATIONS OF THE PUBLIC HEALTH COUNCIL.

Section 370 of the Pubic Health Law, by its express terms, renders it obligatory upon the part of all registrars to conform to any and all regulations, which the Public Health Council might adopt in connection with the registration of births and deaths, and such regulations as the Public Health Council might adopt relative to the inspection or certification of transcripts from or searching of the records of births and deaths would include such records in the offices of the local registrars.

GENERAL MUNICIPAL LAW, SECTION 51—DOMESTIC RELATIONS LAW, SECTION 19—CITY, TOWN AND COUNTY CLERKS—AUTHORITY WITH RESPECT TO ISSUING TRANSCRIPTS FROM OR INSPECTION OF MARRIAGE RECORDS.

Construing section 19 of the Domestic Relations Law and section 51 of the General Municipal Law together, a city, a town or county clerk may make regulations with respect to the issuing of transcripts from, or the inspection of the records in their respective offices relating to marriages as may insure that such transcripts be issued, or inspection made for a legitimate purpose, and not merely for the gratification of curiosity or speculative purposes.

INQUIRY

May the Public Health Council establish regulations relating to the conduct of the Division of Vital Statistics in the State Department of Health, with respect to the issuing of transcripts of the records of births, marriages and deaths and for searches of the records of births, marriages and deaths and inspection of such records generally?
Are the rules and regulations of the Public Health Council relating to the issuing of transcripts from or searches of the records of births and deaths in the offices of local registrars, binding upon local registrars?
To what fee is the State Commissioner of Health entitled for a certified copy of or search of the marriage records in the State Department of Health?
Is it discretionary upon the part of the State Commissioner of Health to supply a certified copy of a record filed or recorded in the Division of Vital Statistics in the State Department of Health or make a search of such records, or is the supply of such certified [188] copy of search of the records of the Division of Vital Statistics in the State Department of Health a mandatory duty when the application therefor is made by a person lawfully entitled thereto?
Are the records referred to in section 391 of the Public Health Law, such records as have been compiled since Article 20 of the Public Health Law went into effect, that is since January 1, 1914, or does such reference include all the items of record relating to births and deaths filed or recorded since the establishing at the capital of the State of a central bureau of Vital Statistics pursuant to the provisions of chapter 322 of the Laws of 1880?
Is the State Commissioner of Health entitled to a fee for a transcript of or a search of the records of births or deaths filed or recorded prior to the time Article 20 of the present Public Health Law took effect?
What authority have the city, town or county clerks to prescribe regulations respecting the issuing of transcripts from or inspection of the marriage records in their respective offices?

OPINION

The Legislature in 1847 by a general statute undertook to provide a permanent registry of marriages, births and deaths with the State of New York. Section 1 of chapter 152 of the Laws of 1847 reads as follows:

“Section 1. The clerks of the several schools districts of this State organized according to law, and where there shall be no clerk, or he shall be incapable of acting, the trustees or one of them of such district shall annually, on or before the fifteenth day of January in each year, ascertain from the most accurate means of information in their power, and report in writing to the town clerk of the town, or one of the aldermen of the ward in which the schoolhouse of their district shall be situated, or in the City of New York, to the City Inspector, under appropriate heads, ad in such forms as shall be prescribed by the secretary of State, the number of births, marriages and deaths which have occurred in their districts respectively during each year preceding the first day of January, the month and day of their occurrence the names and residences of the persons so married or dying and the names of the parents of such children born during the year, the sex, color and names of the children, name and residence of the officer or clergyman performing the marriage ceremony in [189] cases of marriage, the age of the person who shall have married or died during the year aforesaid, and the particular disease or cause of their death. The report of all marriages and births in the city of New York shall be reported direct to the city inspector, and in case there is no physician or midwife in attendance at any birth, then the parents shall be required to report to the city inspector within one month, and all deaths in the city of New York shall be reported to the city inspector as at present, every week.”

It was made the duty of the town clerk, or alderman receiving such report to record the same in a book provided for that purpose and within fifteen days after such receipt transmit a copy thereof or an abstract thereof in such form as the secretary of State might prescribe to the county clerk or city inspector, whose duty it was, within fifteen days after the receipt thereof, to forward an abstract duly certified by him in such form as the secretary of State might prescribe to the secretary of State who was required to file the same in his office, make a complete abstract thereof, and transmit the same to the Legislature as soon as might be practicable thereafter.
Section 3 of said chapter 152 of the Laws of 1847 reads as follows:

“§ 3. It shall be the duty of clergymen, magistrates and other persons who perform the marriage ceremony, to keep a registry of the marriages celebrated by them, and to ascertain as far as practicable and note the ages of the persons married and the time thereof, and their places of birth and their residences in such registry. It shall also be the duties of physicians and professional midwives to keep a registry of the several births in which they have assisted professionally, and the time of such birth, sex, color and the residence of the parents; and physicians who have attended deceased persons in their last sickness, clergymen who have officiated at the funeral and sextons who have buried deceased persons, and keep a registry of the name, age and residence of such deceased persons, and the times of their deaths. It shall be the duty of such physicians, magistrates, clergymen and sextons to allow the clerks of the school district within which they respectively reside, to inspect such registries from time to time, and to furnish them such information in their power as may be necessary to enable such clerks to make the returns by this act.” [190]

By the terms of the statute above mentioned, the record of such matters as pertained to vital statistics, as far as a state record was concerned, was to be in charge of the Secretary of State, who was to provide the forms to be used and his office was the repository of the records of the entire State, of the statistics returned and reported under the provisions of this act.
Chapter 75 of the Laws of 1853 provided for the registry of births, marriages and deaths in the city of New York and it repealed so much of chapter 152 of the Laws of 1847 as was inconsistent therewith.
It made provisions for the reporting to the city inspector by clergymen, physicians, professional midwives and coroners of matters pertaining to vital statistics. The city inspector in turn was to make a record of all matters so reported to him, and on the third Monday of each moth was required to transmit an abstract of his registry of marriages, births and deaths, for the month next preceding to thee Secretary of State. The Secretary of State was to provide the blank forms necessary to carry out the provisions of the act and accompany the same with proper instructions and explanations, receive such returns from the city inspector of the city of New York, and prepare from them such tabular results, with remarks thereon, as would render them of practical utility and make a report thereof annually to the Legislature.
State supervision of vital statistics collected under this last-mentioned statute was maintained through the office of the Secretary of State.
In 1859 an effort was made to secure a uniform system of registration of vital statistics throughout the State and to that end the Committee on Medical Colleges and Societies of the Assembly made a report and recommended for passage an act to secure the registration of births, marriages and deaths, which proposed act provided for the appointment by the recorder of the city of New York and by the county judge of each of the other counties of the State a registrar in each town and ward whose business it was to ascertain, by such means as were designated in the various sections of the act, the facts relating to all the births, marriages and deaths, occurring in their respective towns and wards, and form out of them a local town or ward registry. The registrars were to be assisted in the performance of their labors by the persons who had the best opportunities to obtain an accurate account of the matters to be recorded, viz., the physician, midwife [191] or other person who shall have had professional charge of the mother at the period of the birth; the clergyman or officiating officer at the solemnization of the marriage and the physician who attended the deceased person at the time of the death. These persons were respectively required to report, under a pecuniary penalty or forfeiture for neglect or refusal to perform the duty assigned to them, and clearly described in the said act, and on the other hand a small fee was granted for the services demanded of them by the act. The reports required were to be made monthly in the cities and quarterly in the rural districts, to the local registrars and by them entered upon books prepared for the purpose in a systematic manner. At the end of the quarter in the wards, and of the year in the towns, this record was to be thoroughly examined and corrected, and a full and perfect copy of the same transmitted to the county clerk, who was to enter it upon his book for a county record. These copies were to be verified upon the oath or affirmation of the registrar transmitting such copy, and any falsification of either copy or original record or of any primary certificate, was made a misdemeanor, punishable with fine or imprisonment. An abstract of such copies was to be promptly prepared by the county clerk and forwarded to the Secretary of State, there to be rearranged in a convenient and methodical form. The Secretary of State was required to collate these abstracts and to construct such tables as would best exhibit the general results and promote the objects of the proposed law. An annual report to the Legislature was directed to be made of the workings and results obtained through the operation of the law with such suggestions as might be deemed fitting. (Assembly Documents, 1859, vol. 5, No. 157.) The act so recommended failed of passage.
In 1864 another act was passed to provide for the registration of deaths in the several towns and wards of the State. Chapter 380 of the Laws of 1864 read in part as follows:

“§ 1. It shall be the duties of the assessors in every town and ward in this state, at the time of taking their annual assessments, to ascertain by diligent inquiry of every family of his ward or district, whether any death has occurred in said family or neighborhood within the year ending on the thirty-first day of December then next preceding; and in case any death having occurred, it shall be his duty to ascertain by the best authority within his reach, the date of such death, together with the age sex, color, occupation and [192] nationality of such deceased, and the reputed disease or cause of such death, and to record the same in a book provided for that purpose. And upon the completion of his record, it shall be his duty to deposit the same in the office of the town or city clerk, on or before the day of the first annual meeting of the assessors for a review of their assessment rolls.”

By virtue of other provisions of this last-mentioned act it became the duty of the town or city clerk to copy each such record depositied in his office into a book provided for that purpose and kept by him for safety and future reference. It was also his duty to deposity a copy of the same on or before the day of the first annual meeting of the board of supervisors for that year, in the office of the counnty clerk or officer performing the duties of that office.
The county clerk was required to enter all such copies in a book of record prepard for that pourpose for said county on or before the first day of January next succeeding and to transmit a copy of such record within ten days thereafter to the office of the Secretary of State.
It was made the duty of the Secretary of State to prepare suitable blanks and books for the carrying out of the provisions of this act and to cause the same to be forwarded to the assessors by the first day of June, 1864, and annually thereafter by the first day of April in each year, and to report to the Legislature the annual mortuary statistics of the State by the first day of February in each year.
This last-mentioned statute was repealed in its entirety by chapter 723 of the Laws of 1865.
A general statute was enacted in 1850, entitled “An act for the preservation of the Public Health,” being chapter 324 of the Laws of 1850. The cities of New York and Brooklyn were excepted from the operation of the provisions of this statute.
Under the terms of this statute it was the duty of the common council of every city and the board of trustees of every incorporated village, where there was not a board of health duly organized to appoint once in each year a board of health for such city or village to consist of not less than three nor more than seven persons, and a competent physician to be the health officer thereof. It was further enacted that the supervisor and justices of the peace, or the major part of them of each town in the State, should ber a board ofhealth for such town, for each year, whenever in the opinion of [193] the majority of such board, the public good required it, and they were authorized to appoint some competent physician to be the health officer of the town. The powers and duties of the several boards of health to be organized under such act were defined in detail. The collection and record of matters pertaining to vital statistics was not mentioned in this act.
This last mentioend at was amended by chapter 169 of the Laws of 1854 and chapter 790 of the Laws of 1867. Neither of these two amendatory acts, in fact no act of the Legislature up to the year 1881, amending said chapter 324 of the Laws of 1850, entitled “An act for the preservation of the public health,” made any reference to the collection and record of data properly items of vital statistics.
In 1880 there was enacted a statute, entitled “An act to establish a State Board of Health,” being designated by number as chapter 322 of Laws of 1880. Said statute read in part as follows:

“Section 1. Within twenty days after the passage of this act, the governor shall appoint by and with the consent of the Sneate, three State commissioners of health, two of whom shall be graduates of legally constituted medical colleges, and of ot less than seven years practice of their profession. The said commissioners together with the attorney-general, the superintendent of the State survey and the health officer of the Port of New York, who shall be ex-officio members of the State board of health, and three other persons to be designated and appointed by the governor, one of whom shall be a commissioner of health of the board of health of the city of New York, and the others shall be members or commissioners of health of regularly constituted and organized boards of health of cities of the State, shall constitute the board of health of the State of New York. * * *.”
“§ 6. * * * . It shall be the duty of said board to obtain, collect and preserve such information relating to deaths, diseases and health as may be useful in the discharge of its duties and contribute to the promotion of the health or the security of life in the State of New York. * * *.”
Ҥ 7. It shall be the duty of the State board of health to have the general supervision of the State system of registration of births, marriages and deaths, and also the registration of prevalent diseases. Said board shall prepare the necessary methods and forms for obtaining and preserving such records, and to insure the faithful registration of the same in the sev- [194]

[195]

[196]

[197]

[198]

[199]

[200]

[201]

[202]

[203]

[204] a copy and index in a book kept in his office for that purpose each statement, affidavit, consent and license together with the certificate thereto attached showing the performance of the marriage ceremony fled in his office, and during the first twenty days of the month of January, April, July and October of each year is required to transmit to the State Department of Health at Albany, New York, all original affidavits, statements, consents and licenses with certificates attached filed in his office during the three months preceding the date of such report, together with all original contracts of marriage made and recorded, in his office which record shall be kept on file and properly indexed by the State Department of Health. Section 21 of the Domestic Relations Law directs the State Department of Health to furnish blank forms for marriage licenses and certificates and also proper books for registration ruled for the items contained in said forms and also blank statements and affidavits and such other blanks as shall be necessary to comply with the provisions of said article 3 of the Domestic Relations Law.
Through the operation of the provisions of the Public Health Law and the Domestic Relations Law the State Department of Health is made the final repository of the original certificates of births, marriages and deaths. Its duty with respect to these original certificates of births, marriages and deaths, is defined generally in the provisions of the Public Health Law, whereby a division of vital statistics is established in the Department of Health, and the Commissioner of Health is directed to obtain, collect and preserve such information relating to mortality and health as may be useful in the discharge of his duties or may contribute to the promotion of health or the security of life in the State, and also in the general supervising powers over the division of vital statistics conferred upon the State Commissioner of Health.
The duty imposed upon the State Department of Health with respect to registration of births and deaths is specifically outlined in the provisions of article 20 of the Public Health Law, and the similar duty to provide books and forms and blanks for the recording of marriage certificates and properly file, record and index the same is enjoined upon the State Department of Health by the provisions of sections 20 and 21 of the Domestic Relations Law.
The provision contained in section 7 of chapter 322 of the Laws of 1880, which statute first created a State Board of Health, directing the establishment of a central bureau for the registration of vital statistics at the capital of the State and defining as a [205] duty of the State Board of Health the supervision of the State system of the registration of marriages, births and deaths and the registration of prevalent diseases, is substantially incorporated in the present Public Health Law. The provisions of the laws hereinbefore quoted up to the enactment of the Public Health Law with its amendments to date, that related to matters contained in said chapter 322 of the Laws of 1880, though in terms repealing preceding statutes, were, as far as the subject matter of the legislation contained therein, a substantial re-enactment of provisions of prior laws, and such provisions of the present Public Health Law that are, in effect, substantial re-enactments of portions of prior statutes, are to be construed as a continuation of the provisions of such prior laws and not as new enactments. (Section 95, General Construction Law; Matter of Prime, 136 N.Y. 347.) And in this respect there are other provisions of the present Public Health Law which are substantial re-enactments of some of the provisions contained in chapter 322 of the Laws of 1880 and acts passed subsequent to and amendatory to said chapter. The Commissioner of Health is by section 10 of the present Public Health Law charged with the performance of all the duties imposed by law upon the State Board of Health, or any member, committee or officer thereof, including the secretary, and this section further provides that wherever the term “board of health” occurs or any reference is made thereto, in any law, it shall be deemed to mean or refer to the present State Health Department.
Section 391 of the present Public Health Law reads in part as follows:

“§ 391. Certified copies of records. State commissioners of health to furnish. The State Commissioner of Health may, upon request, supply to any applicant, a certified copy of any birth or death registered under the provisions of this act * * *.”

The act referred to is the present Public Health Law which is in itself a continuation of the State Department of Health and the officer or commissioner of health as constituted by prior statutes (section 2) and also a continuation of all statutes referring to the State Board of Health which was the immediate predecessor of the present State Department of Health not repealed expressly or by implication (section 15). Interpreting the provisions of section 391 quoted above, together with all other sections of the present Public Health Law, the record of births and deaths men- [206] tioned therein, refers to all such records under the dominion and control of the present State Department of Health or the commissioner of health as record items of vital statistics filed and recorded therein since the enactment of the statute first constituting the State Board of Health, wherein provision was made for the establishing at the capital of the State of a central bureau of vital statistics, down to the present time.
The records of marriages, births and deaths, filed and recorded with the State Department of Health, or its predecessor, the State Board of Health, are public records and section 66 of the Public Officers Law is properly applicable to such records. Said section 66 of the Public Officers Law provides:

“Section 66. Persons having custody of papers in public offices to search files and make transcripts. A person having the custody of the records or other papers in a public office, within the State, must, upon request, and upon payment of, or offer to pay, the fees allowed by the law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or to certify that a document or paper, of which the custody legally belongs to him, can not be found.”

The duties imposed by the section last quoted include, within their scope, searching, transcribing or certifying with respect to all the records on file under the dominion and control of the official having the legal custody of such papers as may have been filed and recorded pursuant to law, and by force of this section 66 of the Public Officers Law, the head of the State Department of Health or a person to whom the duty of making and certifying a transcript, and searching upon the request of a person lawfully entitled to such transcript or certificate as to the result of a search with respect to the files and records in their entirety now in the custody, and under the dominion and control of the State Department of Health, as items of vital statistics.
Though the power and authority to certify as to records of births and deaths conferred upon the Commissioner of Health by section 391 of the Public Health Law is so conferred by force of the words “the state commissioner of health may, upon request supply to any applicant a certified copy of the record of any birth [207] or death, etc.” the exercise of such power and authority concerns a matter of public interest and in certain instances affects the rights of individuals, and the permissive words of this section are to be deemed mandatory and “may” shall be construed to mean “must” where the request for such a certification is made by a person lawfully entitled to such a certification (People ex rel. Reynolds v. Common Council of the City of Buffalo, 140 N.Y. 300; Matter of Lauterjung, 48 Sup. Ct. 308). Section 66 of the Public Officers Law quoted above would also serve by the operation of its provisions to render the power and authority conferred upon the State Commissioner of Health by section 391 of the Public Health Law a mandatory duty and not simply permissive or discretionary.
The legislature has imposed upon the public health council and the Commissioner of Health the duty of securing an efficient administration of so much of the Public Health Law as relates to the registration of births and deaths as provided for in article 20 of the Public Health Law, and has conferred upon the public health council and the Commissioner of Health power and authority in maters [sic] pertaining to the enforcement of the provisions of said article 20 of the Public Health Law conducive to a proper discharge of the duty so imposed.
Section 370 of the Public Health Law in part provides:

“The public health council may establish such rules and regulations supplementary to the provisions of this article (article 20) and not inconsistent therewith, as it may deem necessary from time to time in relation to the registration of births and deaths. Such rules and regulations shall be observed by all authorities upon whom duties are imposed by this article in connection with the registration of births and deaths.”

All registrars are persons upon whom duties are imposed by article 20 of the Public Health Law.
Section 393 of the Public Health Law specifically charges each registrar with a strict enforcement of the provisions of said article 20 under the supervision and direction of the State Commissioner of Health, and in addition provides: “The State Commissioner of Health is hereby charged with the thorough and efficient execution of the provision of this article (article 20) in every part of the State, and is hereby granted supervisory powers over registrars, deputy registrars and sub-registrars, to the end that all of its requirements shall be uniformly complied with.” [208]
The source of the general authority conferred upon the public health council is found in section 2-b of the Public Health Law wherein it is provided:

“The public health council shall have power by the affirmative vote of a majority of its members to establish and from time to time amend sanitary regulations, hereinafter called the sanitary code * * *. The sanitary code may deal with any matters affecting the security of life or health or the preservation and improvement of public health in the State of New York, and with any matters as to which jurisdiction is hereinafter conferred upon the public health council * * *.”

The Public Health Law in its entirety is legislation affecting the security of life and health and the preservation and improvement of public health within the State of New York, and under the general authority granted to the public health council to provide regulations that may deal with any matter affecting the security of life or health or the preservation and improvement of public health within the State of New York, there was included within the scope of such authority the right to adopt regulations relating to the matter of vital statistics and the division of vital statistics, established and maintained by the express mandate of the Public Health Law.
The regulations of the public health council necessarily could not conflict with any positive law or operate to defeat, restrict or limit a right established by the express enactment of the legislature.
In the absence of any statute whatsoever relating to the matters of record in the State Department of Health, the officials having charge of the administration of said department might in the exercise of a wise discretion either withhold or permit the inspec- [209] tion or disclosure of any of the records of their department, depending upon whether they can be convinced that such inspection or disclosure is for a legitimate purpose or not. (American District Telegraph Co. v. Woodbury, 127 A.D. 455.)
The provisions of section 66 of the Public Officers Law relating to searching of records of a public office and certifying transcripts of such records, and section 391 of the Public Health Law relating to certified copies of births and deaths impose a duty on the department of health to issue such certified copies or search the records of said department.
In construing these sections, however, it must be assumed that they were enacted with knowledge on the part of the legislature of the existence and scope of the old laws or other laws in force, and that there was no intention to repeal the old laws in enacting the new law unless express words to that effect were used or unless the new law, after every reasonable construction is in terms so repugnant to the old law that both cannot be given effect. (Davis v. Supreme Lodge, 165 N.Y. 159.)
There is nothing in section 66 of the Public Officers Law not in section 391 of the Public Health Law, which is repugnant to or that would operate to repeal the provisions of the public health law relating to power and authority of public health council to enact rules and regulations relating to the records of its office compiled as records of vital statistics generally, and its specific authority to establish rules and regulations in relation to the registration of births and deaths.
The right to the inspection of public documents was discussed in the case of Matter of Eagen, 205 N.Y. 147. In that particular case the public records concerned were the minutes of the proceedings of municipal board relating to a matter in the line of its official duties, and the right of inspection was claimed pursuant to the provisions of section 51 of the General Municipal Law. In both of these particulars the records of the department of health, filed and recorded in the division of vital statistics, differ from records mentioned in the case last cited as section 51 of the General Municipal Law does not apply to the State Department of Health, nor are the records in the division of vital statistics records of the proceedings or acts of any public official, board or office. The right to the inspection upheld in the case of Matter of Eagan, 205 N.Y. 147, was upheld upon the ground that the party seeking such inspection that the inspection was sought for a legitimate purpose; the mov- [210] ing papers showing the applicant to be a taxpayer and a person who came within the provisions of section 51 of the General Municipal Law, and the legislature having by statute made provision for the maintenance of an action by a taxpayer to prevent waste of or injury to the property of a municipal corporation, and this status of the taxpayer gave him a legitimate interest in respect to the contents of any public document that would be serviceable to him in the prosecution of such a suit as the law would authorize the taxpayer to bring.
The right to certification of any of the records in the division of vital statistics in the State Department of Health or a certificate as to the result of a search thereof under section 66 of the Public Officers Law, is to be determined with due regard to the particular rights of each applicant who may make application for such certification or search. Said section does not confer the right to demand a transcript or certify as to the result of a search upon the part of an applicant who cannot specify a right or remedy or a legitimate purpose to be served thereby. (Matter of Lord, 167 N.Y. 398.)
With respect to the information contained in certificates of death filed in the Bureau of Vital Statistics relating to causes of death, considerations of public policy and the provisions of section 834 of the Code of Civil Procedure forbid the indiscriminate disclosure of so much of said information as might have been obtained through the confidential relations of physician and patient. (Davis v. Supreme Lodge 165 N.Y. 159.)
In the Matter of Allen, 148 A.D. 26, an application was made to examine certain records of the department of health in the city of New York, the applicant basing his right to such inspection squarely on his right as a taxpayer under a publicity statute quoted in the opinion. The court in its opinion deciding the merits of the application discussed the construction of the so-called publicity statutes in general, aside from the special statutes interpreted in the case, as follows:

“Publicity statutes similar to the one relied upon by the respondent are common in this country, and they are usually couched in broad terms, but it is generally held that even under such statutes, the individual seeking an inspection must show that the information is sought for some legitimate and specific purpose, and that the gratification of mere curiosity or some speculative purpose will not suffice. What [211] will be deemed a sufficient reason for the examination of any specified records must depend in each case upon its own peculiar circumstances. The department of health, whose records relator seeks to examine, differ in many respects from other municipal departments. In consequence of the nature of its duties it becomes the repository of the records concerning the most intimate affairs of the individuals resident within the limits of the municipality, and among these records are doubtless to be found many matters of no public interest, but which might, if disclosed to whomsoever sought to examine them, be used for sinister or unworthy motives.

The application to so inspect the record discussed in the preceding case was denied and the decision of the Appellate Division denying said inspection was affirmed by the Court of Appeals. (Matter of Allen, 205 N.Y. 158.) The affirmance was in accordance with a construction of a special statute affecting New York City Board of Health.
Under the provisions of the Public Health Law the public health council has authority to adopt rules and regulations defining under what circumstances the records of the division of vital statistics in the department of health may be inspected, and transcripts from such records or searches thereof shall be made, where such rules and regulations have for their aim that the purposes of the law in establishing a division of Vital Statistics shall be fully subserved but not subverted, and in particular have the authority to provide that no inspection, transcript or search of its record shall be made without facts being disclosed to indicate that the application for such inspection, transcript or search is for a legitimate purpose.
Section 370 of the Public Health Law, by its express terms renders it obligatory upon the part of all local registrars to conform any and all regulations which the public health council might adopt in connection with the registration of births and deaths, and such regulations as the public health council might adopt relative to the inspection or certification of transcripts from or searching of the records of births and deaths would include such records in the offices of local registrars.
The records of marriages in the offices of the several town, city and county clerks are filed and recorded therein pursuant to provisions of the Domestic Relations Law. [212]

[213]

[214]

[215]
The records relating to marriages for which this charge could be made, includes all the records of marriages that are a component part of the vital statistics in the State Department of Health filed or recorded therein since 1880.
Dated October 6th, 1921.
CHARLES D. NEWTON.

Attorney-General.

By THOS. F. FENNELL,

First Deputy.

To DR. HERMAN M. BIGGS, State Commissioner of Health, Albany, N.Y.