Ludlow v. Ohio Dep't of Health

Decision Date08 June 2021
Docket Number2021-00040PQ
PartiesRANDY LUDLOW Requester v. OHIO DEPARTMENT OF HEALTH Respondent
CourtCourt of Claims of Ohio
Sent to S.C. Reporter 8/2/21

REPORT AND RECOMMENDATION

JEFF CLARK, SPECIAL MASTER

{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be made available to any person upon request. The state policy underlying the PRA is that open government serves the public interest and our democratic system. To that end, the public records statute must be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Rogers v Dept. of Rehab. & Corr ., 155 Ohio St.3d 545 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. This action is filed under R.C. 2743.75, which provides an expeditious and economical procedure to enforce the PRA in the Court of Claims.

Request for Ohio Death Data Records

{¶2} Beginning on April 20, 2020, requester Randy Ludlow, then a reporter for the Columbus Dispatch, made public records requests to respondent Ohio Department of Health (ODH) for first all and then selected portions of the ODH Electronic Death Reporting System (EDRS) database. ODH initially denied the requests, but later downloaded and delivered all selected EDRS data except the names and addresses of decedents. (Complaint at 3-19.) On January 26, 2021, Ludlow made the final, comprehensive request at issue in this action:

Please provide a copy of the Electronic Death Reporting System database - in digital spreadsheet form -- of all death certificates delivered to the department from March 1, 2020 to Jan. 26, 2021 by all local health departments in the state.
We acknowledge that the department has provided a copy of the database - except for names and addresses which it insists are exempt from release -- and file this request to update the dates for which the database is sought.
We continue to contend that the names and addresses in the death certificate database are public record and again seek their release.

(Id. at 20.) On January 28, 2021, Ludlow filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, ODH filed a response to requester's complaint and motion to dismiss (Response) on April 23, 2021. On May 10, 2021, Ludlow filed a reply. On May 17, 2021, ODH filed a sur-reply.

Motion to Dismiss

{¶3} To dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.

{¶4} ODH argues the complaint fails to state a claim because, 1) the request is for an entire database, 2) the request requires a search, and 3) the request seeks information exempt from disclosure under R.C. 3701.17(A)(2). On review, none of these defenses is conclusively shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed these arguments are subsumed in ODH's defense on the merits. It is therefore recommended that that the motion to dismiss be denied.

Initial Burden of Proof

{¶5} A requester must establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At the outset, the requester bears the burden to show that he seeks identifiable public records pursuant to R.C. 149.43(B)(1). Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.

The Request Identifies Existing Records

{¶6} Each death in Ohio is documented with a local registrar of vital statistics. R.C. 3705.16(B). The local registrar, attending physician or coroner, and others complete the death certificate data using electronic or paper death certificate forms prescribed by ODH. R.C. 3705.08(A) and (D); R.C. 3705.16(C); OAC 3701-5-02(A)(2) Certificate of Death (Appendix B, dated 6/23/2016). (See Response, Sorrell Aff. ¶ 7 -Exh. A at ¶ 7.) The local registrar obtains a certificate number from the state Electronic Death Registration System (EDRS) and transmits the completed death certificate to the ODH office of vital statistics. R.C. 3705.07(A). ODH verifies the information and certificates received from the local registrar, secures omitted information as necessary, and maintains the completed death certificate data in its records management system. R.C. 3705.02, 3705.07(A). As ODH's record copy of Ohio death certificates, the EDRS database is the electronic equivalent of a file cabinet of physical death certificates.

{¶7} Any person may obtain a copy of any death certificate from the EDRS, which ODH prints out and certifies. R.C. 3705.23(A)(1); R.C. 3705.01(O). There is no limitation on who may obtain death certificates, or for what purpose. ODH routinely uses EDRS data to create "a monthly public record (the Deceased Ohioans File)." (Complaint at 7-8.) ODH also publishes leading causes of death and other mortality statistics as "an important component of public health surveillance and assessment."[1] The electronic death data received, checked, maintained, and used to perform and document the functions, operations, and other activities of ODH thereby "exists" as a record of the office. R.C. 149.011(G); See State ex rel. Data Trace Info. Servs., LLC. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 38; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 7.

{¶8} A data dictionary or Death Data File layout, labeled the "Monthly statistical mortality file description" was provided to Ludlow to inform his selection of available death certificate .cvs columns.[2] (Response, Sorrell Aff. Exh. B.) The EDRS is programmed with a Reports function, supported by a Reports Wizard. (Sorrell Aff. -Exh. G - EDRS Menu Screen Shots.) EDRS is also programmed with a Batch > Export function used by, among others, funeral directors to download data sorted by date and available fields. (Id., Exh. D, p. 50-60 and Exh. G.) ODH can and has exported multiple categories of the EDRS database, up to and including the full Death Data file set. (Response, Sorrell Aff. - Exh. A at 4.)[3] At least two department databases - the EDRS itself and the EnterpriseDataWarehouseSecure Secure Mortality Module - are programmed to pull and export data from the EDRS Death Data file. The latter can export any or all Death Data File content in various formats. (Response at 3.) Individual columns can be redacted. (Complaint at 7.) For more detail on the capabilities of ODH database software and relevant law, see Miller v. Ohio Dept. of Health, Ct. of Cl. No. 2020-00618PQ, 2021-Ohio-996 at ¶ 10-20.

{¶9} ODH thus possesses the death certificate data, the office software to download it as requested, and experience in performing such downloads. The special master finds this is clear and convincing evidence that Ludlow requested an existing ODH record.

The Request Does Not Require a "Search" Through the Database

{¶10} ODH is fully capable of and practiced in exporting data from the EDRS. Nevertheless, it argues

Further, the Department is not required to search the database to locate records that meet specific criteria. State ex rel. Shaughnessy v. City of Cleveland 149 Ohio St.3d 612, 614-615, 76 N.E 3d 1171, 1175 (2016).

(Response at 5.) Retrieving reasonably identified records from where they are maintained is the statutory duty of every public office under the Public Records Act. R.C 149.43(B)(2). Straightforward retrieval of records does not constitute a search or research by the office. Instead, "to constitute improper research, a record request must require the government agency to either search through voluminous documents for those that contain certain information or to create a new document by searching for and compiling information from existing records." (Citations omitted.) State ex rel. Carr v. London Corr. Inst, 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 22.

{¶11} The Shaughnessy case relied on by ODH involved complex requests for a police department to, e.g., "search its database for reports that involved (1) incidents of "aggravated assaults" or "assaults," (2) occurring within a specific geographical location, (3) with victims who sought medical care at a hospital, but (4) who were not victims of domestic violence." Shaughnessy at ¶ 10. The Court found this required the city to engage in multiple search, evaluation and culling steps rather than clearly identifying the specific reports sought. Id. at ¶ 4, 11, 18, 20, and 22. This bears no resemblance to Ludlow's straightforward request for all database fields within a defined time period.

{¶12} ODH has provided Ludlow with various datasets from the EDRS in the past. (Complaint at 13-20; Response at 2-4, 7-8.) ODH's previous disclosure of EDRS content does not estop the office from asserting any applicable public records exception going forward. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 38. However, it does establish that existing ODH software can export the requested records using existing programming.

{¶13} Public records law requires production of existing records that are already...

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