Bd. of Health of Cuyahoga Cnty. v. Group

• Decision Date: 26 December 2013
• Docket Number: No. 99832.,99832.
• Citation: 6 N.E.3d 631
• Parties: BOARD OF HEALTH OF CUYAHOGA COUNTY, Plaintiff–Appellee v. LIPSON O'SHEA LEGAL GROUP, Defendant–Appellant.
• Court: Ohio Court of Appeals

6 N.E.3d 631

BOARD OF HEALTH OF CUYAHOGA COUNTY, Plaintiff–Appellee

v.LIPSON O'SHEA LEGAL GROUP, Defendant–Appellant.

No. 99832.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Dec. 26, 2013.

Ronald A. Annotico, Michael J. O'Shea, Lipson O'Shea Legal Group, Rocky River, OH, for Defendant–Appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor by Brian R. Gutkoski, Assistant County Prosecutor, Cleveland, OH, for Plaintiff–Appellee.

Before: JONES, J., CELEBREZZE, P.J., and McCORMACK, J.

LARRY A. JONES, SR., J.

{¶ 1} Defendant-appellant, Lipson O'Shea Legal Group (“law firm”), appeals the trial court's granting of summary judgment in a declaratory judgment action in favor of the plaintiff-appellee, Board of Health of Cuyahoga County, Ohio (“BOH”). For the reasons that follow, we reverse.

I. Procedural History and Facts

{¶ 2} In January 2012, the law firm emailed the following public records request to the BOH:

This is a request for public records to the Cuyahoga County BOH. Pursuant to RC 149.43 (Ohio Public Records Act), I hereby request documentation or information of all homes in 2008, 2009, 2010 and 2011 in Cuyahoga County where a minor child was found to have elevated blood lead levels in excess of 10 mb/D 1.

* * *

{¶ 3} Pursuant to the law firm's request, the BOH identified 110 files consisting of more than 5,000 pages of documents, but concluded that the documents contained “protected health information” that would identify, or could be used to identify, the individuals who were subject of that information. The BOH determined it was prohibited by law from producing any of the requested records.

{¶ 4} The BOH subsequently filed a complaint for declaratory judgment in Cuyahoga County Common Pleas Court, asking the court to determine whether the records were exempt from release as public records under R.C. 149.43. The board filed 12 lead assessment investigation files as a representative sample for the court's in camera review. The records were filed under seal.

{¶ 5} The 12 sample files included: (1) Comprehensive Questionnaire of Parent/Guardian of Children With Elevated Blood Lead Levels, which included the child's name, date of birth, address, family and school information, blood test results, and the names, addresses, telephone numbers and employment information of the child's parent/guardian; (2) Lead Risk Assessment Report, which identified the property owner and address; (3) Letter of Notice to the child's parent/guardian; (4) Letter of Notice to the property owner; (5) Lead Clearance Report, which included the property owner's name and address and a corresponding letter to the child's parent/guardian; (6) Order to Control Lead Hazard sent to the property owner and listing the property address; and (7) other investigatory documents that identified the property owner and/or gave the property's address.

{¶ 6} It is undisputed that the information contained in the documents was not set forth in summary, statistical, or aggregate form.

{¶ 7} The BOH moved for summary judgment, which the law firm opposed. The trial court granted the BOH's motion, finding that the records contained protected health information that described a child's past, present, or future physical condition that would reveal or could be used to reveal the child's identity and, as such, were confidential and exempt from release as a public record pursuant to R.C. 3701.17 and 149.43(A)(1)(v).

{¶ 8} The law firm filed a timely notice of appeal, and now raises one assignment of error for our review: “The trial court erred in granting appellee's motion for summary judgment.” ¹

II. Law and Analysis

{¶ 9} In its sole assignment of error, the law firm argues that the trial court erred in granting the BOH's motion for summary judgment.

{¶ 10} We review an appeal from summary judgment under a de novo standard of review. Baiko v. Mays, 140 Ohio App.3d 1, 7, 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate.

{¶ 11} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party.

{¶ 12} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293, 662 N.E.2d 264.

Ohio Public Records Act

{¶ 13} The Ohio Public Records Act is codified at R.C. 149.43. Courts “construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records.” State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 17, citing State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6. Exceptions to disclosure under the Public Records Act are strictly construed against the public records custodian, and the custodian has the burden to establish the applicability of an exception. State ex rel. Cincinnati Enquirer v. Jones–Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10, citing State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30. The records custodian does not meet this burden if it has not proven that the requested records “fall squarely within the exception.” Jones–Kelley at id.

{¶ 14} R.C. 149.43(A)(1)(v) provides that “[r]ecords the release of which is prohibited by state or federal law” are not “public records.” Thus, a record whose release is prohibited by a state or federal law, is not a public record and not subject to disclosure.

{¶ 15} The BOH argues that state law prohibits the disclosure of the requested records; specifically, R.C. 3701.17, which prohibits the BOH from releasing records that contain “protected health information.”

{¶ 16} R.C. 3701.17(A)(2) defines “protected health information” as:

information, in any form, including oral, written, electronic, visual, pictorial, or physical that describes an individual's past, present, or future physical or mental health status or condition, receipt of treatment or care, or purchase of health products, if either of the following applies:

(a) The information reveals the identity of the individual who is the subject of the information.

(b) The information could be used to reveal the identity of the individual who is the subject of the information, either by using the information alone or with other information that is available to predictable recipients of the information.

{¶ 17} Protected health information “reported to or obtained by the director of health, the department of health, or a board of health of a city or general health district is confidential and shall not be released” unless written consent is obtained by the affected party or unless the information falls within four enumerated exceptions. R.C. 3701.17(B)(1)-(4). None of the exceptions apply to the case at bar.

{¶ 18} The law firm contends that many of the records it requested do not contain “protected health information” as defined by R.C. 3701.17(A)(2) or, once redacted, will not contain protected health information. Therefore, the law firm argues, many of the documents it seeks are not exempt from disclosure.

{¶ 19} The law firm relies on the Ohio Supreme Court's decision in State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, 844 N.E.2d 1181, to support its position. In Daniels, a local newspaper filed a mandamus action seeking release, pursuant to the Ohio Public Records Act, of the Cincinnati Health Department's lead-contamination notices. The department had issued notices to property owners who owned homes and apartments that housed children whose blood tests revealed elevated lead levels. The health department refused the newspaper's request, citing federal privacy laws (HIPAA).

{¶ 20} The Ohio Supreme Court found that the lead-citation notices and lead assessment reports did not contain protected health information under HIPAA because the notices and reports did not identify a particular child with any specific identifiable information. Thus, the notices did not contain “protected health information” under HIPAA.

{¶ 21} The court further found even if the lead-citation notices and lead-risk assessment reports contained “protected health information,” the reports would be subject to disclosure under the “required by law” exception to HIPAA because the Ohio Public Records Law required disclosure of these reports, and HIPAA did not supersede state disclosure requirements. Id. at paragraph two of the syllabus.

{¶ 22} The BOH argues, and we agree, that Daniels is distinguishable from the instant case. Not only are we interpreting a state law in this case, but many of the records do contain at least some identifying information.

{¶ 23} We find the recent Ohio Supreme Court decision in O'Shea, 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, more instructive. In O'Shea, the law firm requested copies of documents that documented all instances of lead poisoning in the last 15 years in any CMHA dwelling. The requested records included:

resident information, including the...