Requester v. Ohio Dep't of Health

• Decision Date: 23 March 2021
• Docket Number: Case No. 2020-00618PQ
• Citation: 2021 Ohio 996
• Parties: ROSANNA L. MILLER Requester v. OHIO DEPARTMENT OF HEALTH, VITAL STATISTICS Respondent
• Court: Ohio Court of Claims

2021 Ohio 996

ROSANNA L. MILLER Requester v. OHIO DEPARTMENT OF HEALTH, VITAL STATISTICS Respondent

Case No. 2020-00618PQ

Court of Claims of Ohio

To S.C. Reporter April 1, 2021

March 23, 2021

Special Master Jeff Clark

REPORT AND RECOMMENDATION

{¶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.

{¶2} 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. Requester Rosanna Miller alleges that respondent Ohio Department of Health, Vital Statistics, violated the PRA by failing to provide her with access to public data from Ohio death certificates concerning Covid-19 deaths.

Request for Ohio Death Data Records

{¶3} On April 20, 2020, Rosanna Miller made a public records request to Karen Sorrell, Chief of the Ohio Department of Health, Office of Vital Statistics (ODH/VS), for the following:

Would you please run a report for all Cause of Deaths in Ohio coded as Covid-19 (U07.1)

With the following search criteria per column:

1. First Name of deceased

2. Last Name of deceased

3. Age

3. Date of Death (YEARMODAY format)

4. County of Death

5. Autopsy (Y or N)

6. Place of Death (hospital, residence, etc)

7. Death Code U07.1 Covid-19

(Complaint, Exh. A.) On April 23, 2020, Sorrell responded:

I will save your request and will contact you when we return to normal operations and start doing special data requests. I can't promise how soon that will be but based on the latest information regarding this pandemic I'm guessing it may not be until the beginning of June.

(Id.) Miller sent a follow-up inquiry on September 25, 2020 (Id., Exh. C), to which Sorrell responded:

I'm sorry but I am not going to be able to provide you the data that you are requesting. My bureau is no longer doing customized requests for data and what you are requesting is a customized dataset as we do not have one that contains the variables you are requesting. Ohio Revised Code section 149.43(A) states that a public record is a record kept by the agency. The document that you are requesting is not kept by the Bureau of Vital Statistics and the Ohio Supreme Court has ruled that an agency is not required to create a record that it does not possess.

(Id., Exh. D.)

{¶4} On October 23, 2020, Miller filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On October 30, 2020, the special master determined that the case should not be referred to mediation and ordered ODH/VS to file its response. On November 20, 2020, with leave of court, ODH/VS filed a response to requester's complaint and motion to dismiss (Response). On December 10, 2020, Miller filed a reply. On February 16, 2021, ODH/VS filed a sur-reply. On March 15, 2021, Miller filed a response to the sur-reply.

Motion to Dismiss

{¶5} 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.

{¶6} ODH/VS argues the complaint fails to state a claim because the requested records do not exist. On review, non-existence of the requested data output is not conclusively shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed this argument is subsumed in ODH/VS' defense on the merits. It is therefore recommended that that the motion to dismiss be denied.

Burden of Proof

{¶7} 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 of production to plead and prove facts showing she sought 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. Miller must show that the items sought meet the statutory definition of "records," and that the records were kept by ODH/VS. ODH/VS does not dispute that death certificates and their contents are records of ODH/VS, but asserts that, 1) data from the death certificates does not exist in the format requested by Miller, and 2) the requested dataset is exempt from disclosure as "protected health information" under R.C. 3701.17.

The Request Sought ODH/VS "Records"

{¶8} "Records" are defined in R.C. 149.011(G) as

any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

"Records" includes documents, items within them, and reports or files aggregated from separate records. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20-24; State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 28-38.

{¶9} Miller seeks electronic records received or created by ODH/VS that serve to document its operations as the statewide repository and provider of vital statistics. Each death in Ohio is documented with a local registrar of vital statistics. R.C. 3705.16. The local registrar and others transmit death certificate data to ODH/VS on electronic or paper forms. R.C. 3705.08(A) and (D); OAC 3701-5-02. ODH/VS verifies each form, secures additional information as necessary, and maintains all death certificate record content in its records management systems. R.C. 3705.02, 3705.07(A), (Response, Sorrell Aff. I at ¶ 2, Sur-reply, Sorrell Aff. II, Exh. A at ¶ 7.) The ODH Certificate of Death form is prescribed by rule. OAC 3701-5-02(A)(2) Certificate of Death (Appendix B, dated 6/23/2016). The death certificate form requires entry of the following numbered data fields corresponding to Miller's request:

1. Decedent's Legal Name (First, Middle, Last, Suffix)

5a. Age (Years)

3. Date of Death (Mo/Day/Year)

18d. County of Death

29a. Was An Autopsy Performed?

18a. Place of Death

18b. Facility Name (If not Institution, give street & number)

28. Part I. Enter the disease, injuries, or complications that caused the death.

{¶10} "Public records" means records kept by a public office. R.C. 149.43(A)(1). ODH/VS does not dispute that it keeps all death certificate data. ODH/VS argues only that the requested data report "does not exist" because ODH/VS does not routinely print out the specific "grouping" of death data requested by Miller. (Response at 3.)

Electronic Death Registration System (EDRS)

{¶11} ODH/VS keeps death certificate data in at least two databases. The first is the Electronic Death Registration System (EDRS) used by ODH/VS "to file and maintain death records in Ohio." (Sorrell Aff. I at ¶ 2.) See R.C. 3705.07(A). EDRS is used to print and certify death certificates when requested pursuant to R.C. 3705.23(A). (Sorrell Aff. II, Exh. A at ¶ 7.) EDRS is programmed with a Reports function, supported by a Reports Wizard. (Sorrell Aff. II, Exh. A at ¶ 6, Exh. G - EDRS Menu Screen Shots.) ODH/VS uses EDRS data to produce recurring reports, including a Deceased Ohioans Report composed of the dataset "name, address, sex, last four digits of the SSN, birth state, date of birth and date of death." (Sorrell Aff. I at ¶ 5.) EDRS offers a separate option to create Ad Hoc Reports. (Sorrell Aff. II, Exh. A at ¶ 6, Exh. G - EDRS Menu Screen Shots.) The reporting functions in the EDRS menu appear to be programmed features of office software, the use of which would not involve writing a new computer program or reprogramming the computer system. See State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 274-275, 695 N.E.2d 256 (1998).

EnterpriseDatawarehouseSecure

{¶12} The requested data is also accessible in the EnterpriseDatawarehouseSecure database. (Sorrell Aff. II, Exh. A at ¶ 2.) The EnterpriseDatawarehouseSecure database has a Secure Portal, through which ODH/VS and other authorized users may access the Secure Mortality Module. (Id.) From there, users can process, inter alia, the variables listed in the Death Data File, and produce downloadable files. (Id. at ¶ 4, Exh. B - Death Data File Layout.) The Death Data File Layout (self-titled the "Monthly statistical mortality file description") includes all data categories sought in Miller's request, which are available as the following ".csv Column[s]":¹

F. Decedent's Legal Name—Given

H. Decedent's Legal Name—Last

N. Decedent's Age—Units 001-135

B. Date of Death—Year

AC. Date of Death—Month

AD. Date of Death—Day

AA. County where death occurred

CP. Was an Autopsy Performed? (Code: Y, N)

Z. Place of Death (Code: 1 Inpatient 2 Emergency Room/Outpatient 3 Dead on Arrival 4 Decedent's Home 5 Hospice Facility 6 Nursing Home/Long Term Care Facility)

CO. Record Axis Codes (Code: All the ICD-10 codes assigned to the causes of death in the death certificate)

(Id.) Users of the Secure Portal can download...